Mexico - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Reynaldo Urtiaga, Bryan, Gonzalez Vargas & Gonzalez Baz, S.C.; Professor of Law at the National Autonomous University of Mexico. He can be contacted at: rurtiaga@bryanlex.com

PDF312.55 KB

$40.00

Description:

Originally from World Arbitration Reporter (WAR) - 2nd Edition

Preview Page

I. INTRODUCTION: ARBITRATION IN MEXICO – HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration

Ever since Mexico became a nation independent from Spain nearly two centuries ago, arbitration has been the subject of evolving statutory law, which is the primary legal source with case law merely serving to construe or supplement the laws passed by Congress and the international treaties ratified by the Senate in conformity with the Constitution.

Thus, the legislative history of Mexican arbitration law can be traced back to the Federal Constitution of 1824, which reproduced an identical provision contained in the Cadiz Constitution of 1812, stating that “nobody shall be precluded from exercising his right to terminate disputes through arbiter judges to be appointed by both parties whatever the stage of the trial is.”

The constitutional recognition of arbitration remained intermittently in force until 1853, only to never find its way back into the Federal Constitution of 1857, nor in that of 1917 currently controlling.

Nonetheless, as from 1854, several statutes have being consistently codifying the law on arbitration in relation to two welldemarcated types of disputes: civil and commercial.

From a State-to-State disputes’ perspective, Mexico took part in several Mixed Claims Commissions set up between 1839 and 1935 with the US and a number of European countries, which operated as true arbitration tribunals.

Likewise, Mexico was one of the pioneers to use public international arbitration to settle high-stake monetary and territorial disputes with countries like the US and France.

Table of Contents:

I. INTRODUCTION: ARBITRATION IN MEXICO – HISTORY AND INFRASTRUCTURE A. History and Current Legislation on Arbitration 1. Historical evolution of law relating to arbitration 2. Current law a) Distinction between domestic and international arbitration law 3. Law reform projects B. Arbitration Infrastructure and Practice 1. Major arbitration institutions 2. Number of cases and other statistics 3. Development of arbitration compared with litigation II. CURRENT LAW AND PRACTICE A. Arbitration Agreement 1. Types of validity of agreement a) Clauses and submission agreements b) Minimum essential content c) Form requirements d) Incorporation by reference e) Interpretation 2. Enforcing arbitration agreements a) Declaratory actions in court b) Applications to compel or stay arbitration c) Anti-suit and other injunctions 3. Effects on third parties a) Extension of the agreement over third parties 4. Termination and breach B. Doctrine of Separability 1. Statutory provisions 2. Practice and case law C. Jurisdiction 1. Competence-competence 2. Interaction of national courts and tribunals D. Arbitrability 1. Subjective arbitrability a) Natural persons b) Legal persons c) States and state entities 2. Objective arbitrability a) Examples of restrictions to objective arbitrability at law E. Arbitral Tribunal 1. Status and qualifications of arbitrators a) Number of arbitrators b) Legal status c) Qualifications and accreditation requirements 2. Appointment of arbitrators a) Methods of appointment b) Appointing authorities c) Resignation and its consequences 3. Challenge and removal a) Grounds for challenge b) Procedure for challenge c) Replacement of arbitrators 4. Arbitrator liability and immunity F. Conducting the Arbitration 1. Law governing procedure a) Determination of law and rules governing procedure b) Notion and role of seat of arbitration 2. Conduct of arbitration a) Basic procedural principles b) Distinction of matters of substance and matters of procedure c) Power of the tribunal to issue procedural orders d) Documents-only arbitrations e) Submissions and notifications f) Deadlines and methods for their extension g) Legal representation h) Effect of the insolvency of a party 3. Taking of evidence a) Admissibility b) Burden of proof (inquisitorial/adversarial) c) Standards of proof d) Evidentiary rules e) Production of documents f) Witnesses i. Ability of a person to act as a witness ii. Preparation of a witness and limits thereof iii. Admissibility of written witness statements iv. Entitlement of a party to have a hearing or cross-examination of witnesses g) Experts 4. Interim measures of protection 5. Interaction between national courts and arbitration tribunals 6. Law and rules of law applicable to the merits 7. Costs G. Arbitration Award 1. Types of awards 2. Form requirements a) Essential content b) Reasons c) Time limits for making award 3. Decision making a) Majority or consensus? b) Dissenting opinions c) Signature, date and place 4. Settlement 5. Amendment and interpretation a) Correcting the award b) Interpretation of award c) Publication o the award 6. Publication of the award H. Challenge and Other Actions against the Award 1. Setting aside a) Grounds b) Time limits c) Procedure d) Limiting judicial review of awards by contract e) Effects of successful challenge f) Appeal against the court’s decision to vacate the award 2. Appeal on the merits a) Is it allowed? b) Excluding the right to appeal by agreement III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards 1. Statutory or other regime a) Distinction between recognition and enforcement b) Competent court and Grounds for refusing recognition and enforcement c) Enforcement procedure 2. Practice a) Appeal against the decision granting or refusing exequatur B. Foreign Awards 1. Various regulatory regimes a) Domestic rules b) Specific bilateral or multilateral treaties c) Extent of review of the award by the court 2. Application of New York Convention by local courts IV. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation (See CD-ROM) B. Major Arbitration Institutions C. Cases D. Bibliography