Omar Guerrero Rodríguez, Partner of Barrera Siqueiros y Torres Landa, who excelled in the areas of Litigation, Arbitration Law and Economic Competition, in collaboration with Associate Mariana Fernandez Salazar, who works in the practice areas of Civil, Commercial and Family Litigation, published in Global Legal Group everything about arbitration in Mexico, for the international edition of this area of practice.

1. The International Comparative Legal Guide to:
International Arbitration 2012
9th Edition
A practical cross-border insight into international arbitration work
Published by Global Legal Group, in association with CDR, with contributions from:
Abreu Advogados King & Spalding International LLP
Advokaturbüro Dr Dr Batliner & Dr Gasser Lazareff Le Bars
Aivar Pilv Law Office Lee and Li, Attorneys-at-Law
Akerman Senterfitt Lenczner Slaght
Ali Budiardjo, Nugroho, Reksodiputro Lendvai & Szörényi
Anderson Mori & Tomotsune Linklaters LLP
Barrera, Siqueiros y Torres Landa, S.C. Maples and Calder
Borden Ladner Gervais LLP Matheson Ormsby Prentice
Boss & Young Miranda Correia Amendoeira & Associados RL
Clayton Utz Motieka & Audzevičius
Clifford Chance CIS Limited Nunziante Magrone Studio Legale Associato
CMS Cameron McKenna SCA Orrick, Herrington & Sutcliffe LLP
De Brauw Blackstone Westbroek PUNUKA Attorneys & Solicitors
Dr. Colin Ong Legal Services Quisumbing Torres, member firm of Baker & McKenzie International
Dr. K. Chrysostomides & Co LLC Sedgwick Chudleigh
Ferreira Rocha & Associados Sergio Bermudes Advogados
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GESSEL Attorneys at law Tilleke & Gibbins
Gleiss Lutz Tonucci & Partners
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Hajji & Associés – Avocats Wald e Associados Advogados
Homburger WEBER & CO.
Jiménez Cruz Peña Werksmans
K&L Gates LLP Wilmer Cutler Pickering Hale and Dorr LLP
Kachwaha & Partners

2. The International Comparative Legal Guide to: International Arbitration 2012
Preface:
Preface by Gary Born, Head of International Arbitration Group, Wilmer Cutler Pickering Hale and Dorr LLP
General Chapters:
Contributing Editors 1 A Comparative Review of Emergency Arbitrator Provisions: Opportunities and Risks – Marc S. Palay &
Steven Finizio, Wendy Tanya Landon, Sidley Austin LLP 1
Miles and Kate Davies,
Wilmer Cutler Pickering
2 I Know I am Going to Win, but What About my Money? Ensuring that Arbitration is Worth
Hale and Dorr LLP the Effort – Tom Sprange & Tom Childs, King & Spalding International LLP 8
3 Mandatory Arbitration and Consumer Class Actions in Canada and the United States –
Account Managers
Lawrence Thacker, Lenczner Slaght 15
Dror Levy, Maria Lopez,
Florjan Osmani, Samuel 4 When is an Arbitration International and What Are the Implications? A Traditional Perspective on
Romp, Oliver Smith, Rory the Enforcement of Annulled Awards – Gustavo Fernandes de Andrade & André Chateaubriand Martins,
Smith, Toni Wyatt Sergio Bermudes Advogados 21
Sub Editor
Fiona Canning
Asia Pacific:
Editor
5 Overview Dr. Colin Ong Legal Services: Dr. Colin Ong 27
Suzie Kidd
6 Australia Clayton Utz: Doug Jones AO 37
Senior Editor
Penny Smale 7 Brunei Dr. Colin Ong Legal Services: Dr. Colin Ong 47
Managing Editor
8 China Boss & Young: Dr. Xu Guojian 56
Alan Falach 9 Hong Kong Clayton Utz in association with Hayley & Co: Glenn Haley & Patrick Daley 67
Group Publisher 10 India Kachwaha & Partners: Sumeet Kachwaha & Dharmendra Rautray 79
Richard Firth 11 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Sahat A.M. Siahaan &
Published by Windri Marieta Ayuningtyas 88
Global Legal Group Ltd. 12 Japan Anderson Mori & Tomotsune: Aoi Inoue 98
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13 Philippines Quisumbing Torres, member firm of Baker & McKenzie International:
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Tel: +44 20 7367 0720
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Fax: +44 20 7407 5255 14 Singapore K&L Gates LLP: Ian Fisher & Andrea Utasy 114
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15 Taiwan Lee and Li, Attorneys-at-Law: Angela Y. Lin & Jeffrey Li 122
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16 Vietnam Tilleke & Gibbins: Michael K. Lee & Doan Ngoc Tran 130
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August 2012
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ISSN 1741-4970 25 Romania CMS Cameron McKenna SCA: Horia Draghici & Bogdan Vetrici-Soimu 200
Stategic Partners 26 Russia Clifford Chance CIS Limited: Timur Aitkulov & Julia Popelysheva 210
27 Ukraine Vasil Kisil & Partners: Oleksiy Filatov & Pavlo Byelousov 221
Western Europe:
28 Overview Gleiss Lutz: Stefan Rützel & Stephan Wilske 230
29 Austria WEBER & CO.: Stefan Weber & Ewald Oberhammer 234
30 Belgium Linklaters LLP: Joost Verlinden & Stijn Sabbe 242
Continued Overleaf
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3. The International Comparative Legal Guide to: International Arbitration 2012
31 England & Wales Wilmer Cutler Pickering Hale and Dorr LLP: Wendy Miles & Kate Davies 252
32 France Lazareff Le Bars: Benoit Le Bars & William Kirtley 269
33 Ireland Matheson Ormsby Prentice: Nicola Dunleavy & Gearóid Carey 278
34 Italy Nunziante Magrone Studio Legale Associato: Prof. Dr. Gabriele Crespi Reghizzi 287
35 Liechtenstein Advokaturbüro Dr Dr Batliner & Dr Gasser: Dr. Johannes Gasser &
Benedikt König 296
36 Netherlands De Brauw Blackstone Westbroek: Eelco Meerdink & Edward van Geuns 304
37 Portugal Abreu Advogados: José Maria Corrêa de Sampaio & Pedro Sousa Uva 313
38 Sweden G Grönberg Advokatbyrå AB: Einar Wanhainen & Johannes Lundblad 325
39 Switzerland Homburger: Felix Dasser & Balz Gross 332
Latin America:
40 Overview Akerman Senterfitt: Luis M. O'Naghten 341
41 Brazil Wald e Associados Advogados: Arnoldo Wald & Rodrigo Garcia da Fonseca 349
42 Dominican Republic Jiménez Cruz Peña: Marcos Peña Rodríguez & Laura Medina Acosta 356
43 Mexico Barrera, Siqueiros y Torres Landa, S.C.: Omar Guerrero Rodríguez &
Mariana Fernández Salazar 365
Middle East / Africa:
44 Overview Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos 374
45 OHADA Geni & Kebe: Mouhamed Kebe & Fakha Toure 380
46 Angola Miranda Correia Amendoeira & Associados RL: Agostinho Pereira de Miranda &
Cláudia Leonardo 387
47 Israel Sherby & Co., Advs.: Eric S. Sherby & Sami Sabzerou 395
48 Morocco Hajji & Associés – Avocats: Amin Hajji 405
49 Mozambique Ferreira Rocha & Associados in association with Abreu Advogados:
Paula Duarte F. Rocha 411
50 Nigeria PUNUKA Attorneys & Solicitors: Anthony Idigbe & Omone Tiku 419
51 South Africa Werksmans: Des Williams 434
52 UAE Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos 445
North America:
53 Overview Orrick, Herrington & Sutcliffe LLP: Ian Johnson & Matt Prewitt 455
54 Bermuda Sedgwick Chudleigh: Mark Chudleigh & Chen Foley 461
55 BVI Maples and Calder: Arabella di Iorio & Victoria Lord 470
56 Canada Borden Ladner Gervais LLP: Daniel Urbas & Robert J.C. Deane 480
57 Cayman Islands Maples and Calder: Mac Imrie & Luke Stockdale 489
58 USA K&L Gates LLP: Peter J. Kalis & Roberta D. Anderson 500

4. Chapter 43
Mexico Omar Guerrero Rodríguez
Barrera, Siqueiros y Torres Landa, S.C. Mariana Fernández Salazar
1 Arbitration Agreements agreements. The January 27, 2011 Amendment to the Mexican
Commercial Code that contains the relevant chapter on arbitration
–articles 1415 to 1480–, and which is also known as the “Mexican
1.1 What, if any, are the legal requirements of an arbitration
Arbitration Law” confirms the enforceability of arbitration
agreement under the laws of Mexico?
agreements. In this token, a Mexican court must refer the parties to
arbitration unless: (i) the relevant party fails to raise the issue in its
Arbitration agreements in Mexico require a written agreement
first appearance in court; (ii) the agreement is notoriously null and
whereby parties to the arbitration expressly agree to arbitrate.
void or incapable of being performed; and/or (iii) the plaintiff
While verbal agreements to arbitrate are unenforceable, other
evidences that there is a res iudicata judgment or award that
means, such as exchange of letters, telex, and telegrams, among
declared the nullity of the arbitration agreement.
others, are enforceable. This will include electronic
communications, although evidence of representation will be part Furthermore, Mexican Supreme Court decisions have made it clear
of the contention. In addition, there must be evidence of the that Mexico is to be an arbitration friendly country. Due to the 2011
fulfilment of the relevant requirements as set out by the amendment of the Mexican Commercial Arbitration Act, the
UNCITRAL Model Law on electronic commerce, which Mexico legislature has evidenced its commitment to enforcing arbitration
adopted in 2000. Furthermore, an agreement to arbitrate may be agreements as well.
considered valid if notice of the arbitration agreement is given, and
the other party does not deny its validity. 2 Governing Legislation
When a party seeks to enforce the relevant award, Mexican courts
require that the enforcing party files an original, or certified copies,
2.1 What legislation governs the enforcement of arbitration
of the arbitration agreement duly translated into Spanish.
proceedings in Mexico?
1.2 What other elements ought to be incorporated in an The Federal Commercial Code, as amended in January 2011, as
arbitration agreement? well as international treaties and conventions to which Mexico is
party govern the enforcement of arbitration proceedings in Mexico.
Under Mexican law, an arbitration agreement is a waiver to appear The Federal Commercial Code adopted the 1985 UNCITRAL
before national courts. Therefore, an arbitration agreement must be Model Law in 1993 and has always tried to follow the best
clear and be expressed in a manner so as not to raise doubts that the international practices in arbitration by actively participating in the
parties seek to arbitrate their disputes. From the contractual UNCITRAL discussions related to international commercial
standpoint, it must be clear that the parties: (i) must have the arbitration.
capacity and proper representation to execute the arbitration International: various international legal instruments govern
agreement; (ii) must specify whether some or all disputes will be arbitration enforcement with regards to arbitration in Mexico. The
resolved through arbitration; (iii) must be certain that the disputes ones that take relevance are: (i) the UN Convention on the
are capable of being resolved through arbitration; and (iv) must Recognition and Enforcement of Foreign Arbitral Awards,
contain the relevant waivers to the institutional arbitration rules that otherwise known as the “New York Convention” (1958); (ii) the
will be applicable or the relevant ad hoc provisions applicable to Inter-American Convention on International Commercial
such arbitration. In this token, the clearer and simpler the Arbitration, the “Panama Convention” (1975); and (iii) the Inter-
arbitration clause, the better. American Convention on Extraterritorial Validity of Foreign
Parties to an arbitration should be aware that matters of public Judgments and Arbitral Awards, the “Montevideo Convention”
policy or public order cannot be resolved by arbitration (e.g., family (1979).
law, criminal matters, anti-trust, intellectual property, etc.). Domestic: the Mexican Arbitration Act, found in the Commercial
Code, is the internal legislation concerned with commercial
1.3 What has been the approach of the national courts to the arbitration. The Commercial Arbitration Act was amended in 2011.
enforcement of arbitration agreements? The purpose of the amendment was to provide clearer and speedier
proceedings for court assistance and to control arbitration including
With the exception of those areas covered by public policy or public but not limited to: (i) appointing and removing of arbitrators; (ii)
order, the general approach has been to enforce arbitration obtaining evidence; (iii) granting provisional measures; (iv) setting
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5. Barrera, Siqueiros y Torres Landa, S.C. Mexico
aside awards; and (v) recognising and enforcing awards. like many other countries, the demarcation in Mexico of what is
A drawback is that, due to the 2011 Amendment, there: (i) are no ex unarbitrable is not manifest. However, like in many other nations,
parte provisional measures; and (ii) is liability for petitioners and matters that concern public policy are generally not arbitrable.
arbitration tribunals with respect to damages caused by granting
provisional measures. Both features have been a source of criticism 3.2 Is an arbitrator permitted to rule on the question of his or
in the Mexican arbitration landscape. her own jurisdiction?
Mexico
2.2 Does the same arbitration law govern both domestic and Yes, he/she is. The Mexican Commercial Arbitration Act – as
international arbitration proceedings? If not, how do they contained as a chapter within the Commerce Code – follows the
differ? kompetenz-kompetenz approach.
The Mexican Commercial Arbitration Act gives precedence to 3.3 What is the approach of the national courts in Mexico
international conventions such as the 1958 New York Convention. towards a party who commences court proceedings in
Since the 1958 New York Convention does not deal with procedural apparent breach of an arbitration agreement?
features (neither does the UNCITRAL Model Law), it leaves such
freedom to each country to implement the best proceedings to The general approach is to defer to the arbitrators’ authority, and
achieve efficiency in accordance with their legal tradition. At the enforce the agreement. Notwithstanding, the court will not refer the
end, the overall objective is to have arbitration agreements and parties to arbitration ex officio, but rather it will have to be subject
awards subject to proper respect and enforcement. to an express defence of the respondent. Failing such defence, the
court will consider that the parties waived or rejected the arbitration
2.3 Is the law governing international arbitration based on the agreement and decided to submit their differences to a court of law.
UNCITRAL Model Law? Are there significant differences
between the two? 3.4 Under what circumstances can a court address the issue
of the jurisdiction and competence of the national arbitral
The Mexican Commercial Arbitration Act borrows heavily from the tribunal? What is the standard of review in respect of a
1985 UNCITRAL Model Law and was adapted almost verbatim in tribunal’s decision as to its own jurisdiction?
1993. Mexican law has implemented the relevant procedural
features of the 1985 UNCITRAL Model Law in accordance with The 2011 Amendment to the Mexican Commercial Arbitration Act
the civil tradition that Mexican belongs to. tried to clarify that arbitration agreements must be respected and
Notwithstanding, there are a few items that are subject to criticism, exceptionally declared null and void. Thus: (i) parties must abide
such as the 3-month term to file a complaint to set aside the award. to arbitration if they agreed to an arbitration agreement; (ii) if one
Under the Mexican procedural standpoint, such term is a little bit party appears in court demanding the nullity of the arbitration
excessive since the maximum term to file a challenge in Mexico is agreement, the court must grant the respondent the opportunity to
45 business days. Notwithstanding, the verbatim incorporation of express its view; (iii) if the respondent does not raise the defence to
the 1985 UNCITRAL Model Law and not wanting a departure from “refer the parties to arbitration”, the court will not refer the parties
its substantive provisions seems to be the relevant argument for to arbitration ex officio; and (iv) if the respondent raises such
such rule to remain. defence, then the court must rule on the issue and if granted the
referral to arbitrate, then, it must suspend the court proceedings.
The court will follow a strict standard as to the agreement to
2.4 To what extent are there mandatory rules governing
international arbitration proceedings sited in Mexico? arbitrate being null, void or incapable of being performed since it
would have to be “notorious” and follow a “rigorous criterion”.
Mexican statutes and courts tend to favour and respect the freedom Likewise, it could reject or disavow the arbitration agreement
to contract of the parties. Notwithstanding, whenever the parties whenever there has been a prior arbitration award or res iudicata
choose Mexico as their seat of arbitration, they must be wary that judgment on the subject.
courts will examine arbitrability and public policy seriously. Under
the 1958 New York Convention and the Mexican Commercial 3.5 Under what, if any, circumstances does the national law
Arbitration Act, both issues are subject to an ex officio review by of Mexico allow an arbitral tribunal to assume jurisdiction
courts in setting-aside as well as recognition and enforcement of over individuals or entities which are not themselves party
arbitration awards. to an agreement to arbitrate?
The general rule is that third parties cannot be compelled to
3 Jurisdiction arbitrate if they have not executed an arbitration agreement.
Notwithstanding, in practice, a similar process by which parties to
3.1 Are there any subject matters that may not be referred to arbitration agree to arbitrate could be applicable. Third parties may
arbitration under the governing law of Mexico? What is be judged as falling under the arbitral tribunal’s jurisdiction when:
the general approach used in determining whether or not 1) there is evidence of communications between the parties in
a dispute is “arbitrable”? question by which one party asserts the agreement to arbitrate and
the other party does not contest such submission; 2) where the third
Although not made explicitly clear, generally, the matters that are party is incorporated, by reference, into an agreement having an
undeniably outside of the arbitration realm are those which fall arbitration provision; and 3) where evidence can be shown that the
within the fields of family, criminal, intellectual property and anti- third party assented via the parties’ communication.
trust law. Also unarbitrable are administrative and regulatory
matters involving adjudication by a governmental agency. Thus,
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6. Barrera, Siqueiros y Torres Landa, S.C. Mexico
3.6 What laws or rules prescribe limitation periods for the 5 Selection of Arbitral Tribunal
commencement of arbitrations in Mexico and what is the
typical length of such periods? Do the national courts of
Mexico consider such rules procedural or substantive, 5.1 Are there any limits to the parties’ autonomy to select
i.e., what choice of law rules govern the application of arbitrators?
limitation periods?
Although no specific limits exist, if the selection process is deemed
Mexico
Mexico does not have a general and specific limitation period to violate due process, then the agreement will likely not be upheld
demarcated for arbitration proceedings, although under the in the interest of public policy.
Commercial Code, the general limitation period is ten years, unless Arbitrators must fulfil the “independence and impartiality”
there is a specific statute of limitations (i.e. 5 years for conflicts requirement.
among shareholders).
The statute of limitations is subject to interruption through a judicial
5.2 If the parties’ chosen method for selecting arbitrators fails,
complaint or similar judicial notice but there is no similar rule for is there a default procedure?
arbitration complaints. This is a “window of opportunity” for
subsequent amendments. A court may step in, by default, to determine the method for selecting
arbitrators if the parties’ chosen method fails either prior to a dispute,
3.7 What is the effect in Mexico of pending insolvency or once it has begun. This mechanism was established to thwart
proceedings affecting one or more of the parties to dilatory tactics. This method includes the list-procedure and
ongoing arbitration proceedings? consultation to chambers of commerce and arbitration institutions in
order to find suitable arbitrators to resolve the dispute.
According to the Mexican Insolvency and Bankruptcy Law, those
pending proceedings against the insolvent party – including
5.3 Can a court intervene in the selection of arbitrators? If so,
arbitration proceedings – will not be suspended. Once the award is
how?
enforceable, then it will be subject to express credit
acknowledgment by the conciliator and the judge of the insolvency
In the case that the contract or the agreed upon procedural rules do
and bankruptcy proceedings.
not adequately address the selection of arbitrators, the court may
step in. This would happen in a few specific instances: a) if the
4 Choice of Law Rules parties to the arbitration did not agree upon a procedure by which to
appoint arbitrators; b) if one or more of the parties fail to appoint
their desired arbitrator; c) if both parties agreed upon their
4.1 How is the law applicable to the substance of a dispute arbitrators, but the arbitrators cannot agree on a third and presiding
determined?
arbitrator; and d) the institution that was chosen to select the
arbitrators fails to do its job as provided for by the designated
The parties can freely choose the applicable law on the merits of the
arbitration rules.
dispute. The substantive law normally appears from the inception
of the arbitration clause or the underlying agreement where the The chosen arbitrators in all cases must meet the “independent and
arbitration clause is so contained. Failing such decision, then, the impartial” requirement. Additionally, if the courts are considering
arbitration tribunal would have to choose the applicable law on the a foreign actor in the selection of the chair or sole arbitrator, the
merits taking into account the different features of the dispute: (i) court must perform a cost-benefit analysis of the arbitrator’s
parties involved; (ii) nature of the controversy and underlying nationality with regards to the arbitration. If a panel of three
agreement; (iii) language of the parties; (iv) closest connection to arbitrators makes up the tribunal, it is common practice to appoint
the subject-matter of the dispute; and (v) any other relevant fact to a presiding arbitrator who is of a different nationality from the other
assist in the determination of the applicable substantive law. arbitrators. However, the nationality of the other arbitrators usually
is not an obstacle to arbitration. The court’s final decision on the
arbitral composition may not be appealed, but may be subject to a
4.2 In what circumstances will mandatory laws (of the seat or constitutional challenge. Furthermore, the parties retain their right
of another jurisdiction) prevail over the law chosen by the to recuse the arbitrator appointed by the court.
parties?
The recent 2011 Amendment to the Commercial Code provides a
The arbitration tribunal will give precedence to the applicable law detailed procedure to appoint an arbitrator in the absence of the parties’
chosen by the parties, unless such law conflicts with arbitrability or agreement. The procedure comprises a summary request (jurisdicción
Mexican public policy. voluntaria) that is heard before a federal or local court at the place of
arbitration, depending on the choice of the requesting party. The
judgment cannot be appealed but amparo proceedings are available.
4.3 What choice of law rules govern the formation, validity, The parties preserve their right to reject the arbitrator appointed by the
and legality of arbitration agreements? court if they agree to commonly appoint an agreed arbitrator.
The law chosen by the parties to govern the substantive issues of the
arbitration agreement and underlying agreement will prevail on this 5.4 What are the requirements (if any) as to arbitrator
independence, neutrality and/or impartiality and for
issue. Absent this agreement, the law of the execution of the
disclosure of potential conflicts of interest for arbitrators
arbitration agreement governs the formation, validity and legality of
imposed by law or issued by arbitration institutions within
arbitration agreements, unless the parties have specified a different Mexico?
law.
Arbitrators are required to be “independent and impartial”.
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7. Barrera, Siqueiros y Torres Landa, S.C. Mexico
Furthermore, arbitrators are strongly encouraged to disclose any 6.5 Are there rules restricting the appearance of lawyers from
circumstances that may create a presumption of bias and other jurisdictions in legal matters in Mexico and, if so, is
impartiality, and which might be reasons for the arbitrator to be it clear that such restrictions do not apply to arbitration
disqualified. It is also common to request confirmation that proceedings sited in Mexico?
arbitrators are available in order to ensure speedier arbitration
proceedings. There is no such restriction for foreign lawyers to appear in
arbitration proceedings. It is more common to have foreign counsel
Mexico
The International Bar Association issued Guidelines on Conflicts of
appearing in arbitration proceedings whose seat of arbitration is
Interest in International Arbitration in 2004. These guidelines,
Mexico on behalf of transnational companies. If Mexican
which act as recommendations only, set out a list of factors that
substantive law is applicable (and due to the possible application of
could affect the impartiality and independence of arbitrators in
mandatory rules of the seat of arbitration), it is also common to have
specific circumstances, their seriousness and whether they could be
Mexican co-counsel or assisting foreign counsel. This is also the
waived by the parties.
case whenever the arbitration proceedings are primarily in a foreign
language (e.g. English) different from Spanish.
6 Procedural Rules
6.6 To what extent are there laws or rules in Mexico providing
6.1 Are there laws or rules governing the procedure of for arbitrator immunity?
arbitration in Mexico? If so, do those laws or rules apply
to all arbitral proceedings sited in Mexico? An arbitrator’s immunity is a subject that is not set forth under the
Commercial Code; it is a product of the arbitration rules subject to
Yes. The Mexican Commercial Arbitration Act contains both administration (i.e. the ICC).
mandatory and default provisions for the arbitration procedure.
These provisions apply to arbitral proceedings that are factually and
6.7 Do the national courts have jurisdiction to deal with
legally sited in Mexico – that is, a proceeding could be situated
procedural issues arising during an arbitration?
outside of Mexico, but legally still be covered by the law. Thus,
following widespread arbitration practices, no requirement exists
Other than a few limited issues that the court is specifically
by which all proceedings have to be held physically sited in Mexico
designated to deal with (i.e., interim measures), the court must have
but this issue has to be consented by the parties and the arbitration
a hands-off approach. Courts have an assistance and control
tribunal. Having certain hearings or activities abroad would not
approach in those specific items set forth under the Commerce
mean a change to the seat of arbitration.
Code (e.g., appointing and removing arbitrators, referring the
parties to arbitrate, assisting in the taking of evidence, granting
6.2 In arbitration proceedings conducted in Mexico, are there provisional measures, setting aside and recognising and enforcing
any particular procedural steps that are required by law? awards).
While there are no definitive steps that are required by law, general
principles still apply – such as making sure that due process 7 Preliminary Relief and Interim Measures
requirements are heeded and that parties are treated equally. This
implies that the parties had a fair chance to present their case and to 7.1 Is an arbitrator in Mexico permitted to award preliminary
appoint an arbitrator. or interim relief? If so, what types of relief? Must an
arbitrator seek the assistance of a court to do so?
6.3 Are there any rules that govern the conduct of an
arbitration hearing?
The Mexican Arbitration Act allows arbitrators to issue any
measures that are “necessary with respect to the subject-matter of
the dispute”. Thus, arbitrators have rather unrestrictive freedom to
No rules exist other than respecting general principles of arbitration.
issue whichever issues it feels are necessary. The 2011 Amendment
This is, full respect to the agreement of the parties or the fair chance
confirms such possibility by allowing courts a wide discretion to
to present their case. With respect to rules that govern the conduct of
grant any measure it deems necessary to preserve the subject-matter
an arbitration hearing, the principles that apply are that parties be
of the arbitration. Most times, the enforcement of such measures
treated fairly, and that they are given the full opportunity to present
will require judicial assistance since arbitrators do not have the
their case before the tribunal. Otherwise, tribunals have substantive
power on their own to enforce such measures. In the case that the
say over how the hearing is conducted. In practice, the arbitration
arbitral tribunal requests judicial assistance, it will be up to the court
tribunal gives a broad scope to the parties to express their views as to
to decide if the grounds for enforcing such measures are adequate.
how the arbitration proceedings will be conducted.
A drawback is that due to the 2011 Amendment there is a specific
summary special commercial procedure to recognise and enforce an
6.4 What powers and duties does the national law of Mexico
award related to provisional measures. This procedure is the same
impose upon arbitrators?
as to recognise and enforce final awards.
Among other powers, the tribunal may assess the need, Likewise, another problem is that there: (i) are no ex parte
admissibility, and weight of any evidence that is presented, as well provisional measures; and (ii) is liability for petitioners and
as order the production of documents and witnesses. If the arbitration tribunals with respect to damages caused by granting
tribunal’s orders are not heeded, the tribunal may make whichever provisional measures. Both features have been a source of criticism
inferences it feels are prudent given the circumstances and rules. If in the Mexican arbitration landscape.
the inference is adverse, it is not clear whether the parties’ express
consent will be necessary. (See also the answer to question 6.3.)
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8. Barrera, Siqueiros y Torres Landa, S.C. Mexico
7.2 Is a court entitled to grant preliminary or interim relief in limited in Mexican courts, it is uncertain whether the arbitral
proceedings subject to arbitration? In what tribunal may render an award when there was evidence not
circumstances? Can a party’s request to a court for relief provided by one of the parties. In this token, the most powerful tool
have any effect on the jurisdiction of the arbitration for arbitrators would be to make adverse inferences when parties
tribunal?
refuse to disclose information they were ordered to provide.
In the case that the arbitral tribunal requests judicial assistance and
Mexico
the courts have to step in, courts are allowed to grant relief in order 8.2 Are there limits on the scope of an arbitrator’s authority to
to preserve the subject-matter of the arbitration procedures. order the disclosure of documents and other disclosure
(including third party disclosure)?
Seeking judicial assistance raises other problems that parties should
be aware of. If not stated appropriately, the request for assistance No legal duty to provide evidence exists. Hence, when parties do
could constitute a waiver of the right to arbitrate or could also disclose information, it might be motivated by the parties’ desire to
jeopardise the tribunal’s jurisdiction. Furthermore, following the not have adverse inferences made with regards to their refusal to
2011 Amendment, such measures may no longer be granted ex produce documents.
parte. A summary adversarial procedure is required which is only
subject to constitutional challenge. This further complicates the It is a common clash to resolve the abuse that it could come with
process and may be a drawback. undue requests for production of documents vis-a-vis the right to
present your case.
7.3 In practice, what is the approach of the national courts to
requests for interim relief by parties to arbitration 8.3 Under what circumstances, if any, is a court able to
agreements? intervene in matters of disclosure/discovery?
The 2011 Amendment provided for broad authority or full The Mexican Arbitration Act provides for court assistance for court
discretion to the judiciary to grant provisional measures. This broad assistance for evidentiary matters, and in general, Mexican courts have
discretion tried to override the argument that existed in the past that a duty to aid arbitration proceedings. With regards to the general duty,
courts could only grant the same measures available in litigation given that Mexico does not have a comprehensive discovery procedure
(attachment of assets and arraignment). like other Anglo-Saxon jurisdictions, this duty will probably not
involve discovery measures. Furthermore, more limits arise since
The pitfall came with the fact that there are no longer ex parte
statutes in Mexico prevent foreign discovery-related orders.
measures but rather it is necessary to exhaust a summary
commercial procedure that although not subject to appeal it is In this token, the most effective device that an arbitration tribunal
subject to direct or one-tier amparo proceedings. has is precisely to draw adverse inferences of fact against the non-
cooperating party.
7.4 Under what circumstances will a national court of Mexico
issue an anti-suit injunction in aid of an arbitration? 8.4 What, if any, laws, regulations or professional rules apply
to the production of written and/or oral witness testimony?
For example, must witnesses be sworn in before the
The court now enjoys full discretion to grant any provisional
tribunal or is cross-examination allowed?
measure it deems adequate. See question 7.3. The Mexican
Commercial Code makes the petitioner and the arbitrator liable for
Although the arbitral tribunal is generally in charge of determining
a provisional measure that causes damages to the recipient of the
what rules will apply, it is common practice for tribunals to apply
measure.
the 1999 or 2010 IBA Rules for Evidence. Parties can agree to have
these rules be the ones that apply to the conflict, or the tribunal can
7.5 Does the national law allow for the national court and/or informally apply them, by using the rules as a guide although “on
arbitral tribunal to order security for costs? paper” they are not obligated to do so.
There are no limits on cross-examination, and it is of widespread
Arbitration tribunals are able to order applicants to post security
use. The Mexican Arbitration Act follows the common rule to give
bonds. For this order to be issued, it must be a case where the
the arbitration tribunal the widest criterion to conduct the arbitration
applicant evidences the required degree of necessity and urgency
in the form and terms that it deems adequate, provided that it
(high bar). Notwithstanding, these bonds or guarantees are related
respects due process rights.
to damages caused to the recipient of the measure rather than
security for costs of the arbitration proceedings.
8.5 What is the scope of the privilege rules under the law of
Mexico? For example, do all communications with outside
8 Evidentiary Matters counsel and/or in-house counsel attract privilege? In what
circumstances is privilege deemed to have been waived?
8.1 What rules of evidence (if any) apply to arbitral
proceedings in Mexico?
Mexico does not regulate the attorney-client privilege information
as other countries do. Mexico follows a general rule of
confidentiality. Therefore, no specific protections exist for
No specific rules exist. It is common to adhere to the guidelines set
information that might be deemed confidential outside of the
out by the then 1999 or the new 2010 IBA Rules on Taking of
protections that might be provided by an agreement amongst the
Evidence in International Commercial Arbitration (“Rules for
parties to keep such information confidential. Another related
Evidence”). Likewise, in practice, parties usually agree to the rules
consideration is that because in Mexico there is no substantive
that are to be followed in regards to evidence. Given that no
discovery process, third parties would, regardless, have a rather
specific rules exist in Mexico, and that usually discovery is very
difficult time accessing any such documents.
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9. Barrera, Siqueiros y Torres Landa, S.C. Mexico
9 Making an Award expand the scope of the appeal, or the judgment stage of the
procedure, it is likely that the court could take a more liberal view
since such agreement seeks to expand the rights of the parties rather
9.1 What, if any, are the legal requirements of an arbitral
than restricting them.
award? For example, is there any requirement under the
law of Mexico that the Award contain reasons or that the
arbitrators sign every page? 10.4 What is the procedure for appealing an arbitral award in
Mexico
Mexico?
For the award to be valid, certain requirements must be met: 1) it
must be in writing; 2) it must be signed by all of the arbitrators or Arbitral awards may not be appealed, although they will be subject
the majority where necessary (if signed by the majority the reasons to constitutional challenges (direct amparo) that will be heard by a
for this must be included in the award); 3) the award must include federal collegiate circuit court. This challenge is devised to
the reasoning that led it to reach its conclusions unless the parties examine possible violations of fundamental human rights.
consented to the award or the tribunal was authorised to act in good
faith; and 4) it must include the date and place where the award was
issued. 11 Enforcement of an Award
There is no statutory mandate that every page of the award be
executed. Such challenges usually arise whenever a party seeks to 11.1 Has Mexico signed and/or ratified the New York
nullify or deny recognition and enforcement of an award or use it as Convention on the Recognition and Enforcement of
dilatory tactic to contest authenticity of the award. Foreign Arbitral Awards? Has it entered any
reservations? What is the relevant national legislation?
10 Challenge of an Award Mexico is party to the 1958 NY Convention since 1971 and has no
reservations as to the commerciality of the dispute which ended
with the award or reciprocity of the country where the arbitration
10.1 On what bases, if any, are parties entitled to challenge an
arbitral award made in Mexico? award was rendered. This fact re-enforces the pro-enforcement bias
of our country. As in Mexico treaties are self-executing, there was
Arbitration awards are final and cannot be appealed. Mexico no need for additional legislation to be passed for the convention to
followed the 1985 UNCITRAL Model Law and so recognises the take effect. In general, with the exception of matters dealing with
“setting aside procedure” as the only recourse to actively challenge public policy, or other issues mentioned previously, awards are to
the award. The other option is to refuse the recognition and be enforced by national courts. The relevant national legislation for
enforcement of the award from the passive standpoint. Both commercial arbitration is the Mexican Commercial Arbitration Act
grounds for setting aside or refusing to recognise and enforce the found in the Federal Commerce Code, articles 1415 to 1480.
award are basically the same. These grounds resemble those
provided under Section V of the 1958 New York Convention which 11.2 Has Mexico signed and/or ratified any regional
also were reproduced at the 1985 UNCITRAL Model Law. The Conventions concerning the recognition and enforcement
relevant provisions provide that certain grounds can only be raised of arbitral awards?
by the parties (i.e. departure of the arbitration clause, lack of
opportunity to appoint an arbitrator, etc.), while arbitrability and Mexico is also party to the 1975 Panama Convention and other
public policy can also be raised ex officio by the court. bilateral treaties in arbitration such as the one executed with Spain
The 2011 Amendment provides for a summary special commercial in 1992.
procedure that ends with a non-appealable judgment.
Notwithstanding, this judgment is subject to a direct amparo or 11.3 What is the approach of the national courts in Mexico
constitutional proceedings to be heard by a Collegiate Circuit court. towards the recognition and enforcement of arbitration
awards in practice? What steps are parties required to
take?
10.2 Can parties agree to exclude any basis of challenge
against an arbitral award that would otherwise apply as a
Arbitration awards have been for the most part enforceable in Mexican
matter of law?
courts, and now their enforcement will be facilitated even more by the
2011 amendment to the Mexican Arbitration Act. In determining the
Although the answer here is not certain, it is very likely that a court
enforcement or non-enforcement of the award, the court will not be
would not allow parties to waive the court’s authority to set-aside
able to rule on the merits of the award. Courts have favoured this
an award based on public policy interests.
approach and most federal precedents have been related to matters of
Since the setting aside proceedings are the “only recourse” against procedure (before the 2011 Amendment) rather than substance.
a commercial award, it will be difficult to convince a court that such
In general, awards are presumed enforceable granted all the
waiver is valid. This is specially so when the grounds to set aside
necessary requirements are met. However, if the party opposing the
or refuse to recognise and enforce an award are limitative and do
award is able to meet its burden of proof in demonstrating why it
not allow a review on the merits of the award.
should not be enforced, then the court will rule accordingly.
The party seeking enforcement will have to bring the original (or
10.3 Can parties agree to expand the scope of appeal of an
certified) copies of the arbitration agreement and the award. The
arbitral award beyond the grounds available in relevant
award itself must be apostilled or legalised, and if not in Spanish,
national laws?
must be translated by an official source. Then the award must be
brought before a competent judge for him/her to recognise it and
Notwithstanding the fact that parties could tailor their contract to
consequently enforce it.
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10. Barrera, Siqueiros y Torres Landa, S.C. Mexico
The 2011 Amendment modified the procedure to recognise and 13 Remedies / Interests / Costs
enforce awards. This procedure is now a special summary
commercial procedure that basically commences with a complaint
13.1 Are there limits on the types of remedies (including
where the arbitration agreement and the award have to be filed.
damages) that are available in arbitration (e.g., punitive
Competent courts are federal or local courts of the place of arbitration,
damages)?
unless seeking enforcement of a foreign commercial award. In this
Mexico
case, the competent court will be the local or federal court of the
Unless the parties have agreed otherwise, no specific limits exist on
domicile of the defendant or, otherwise, the place where its assets are
the kind of remedies available. Punitive damages pose an
located. The respondent will have a 15 business-day term to respond,
interesting question on Mexican law since Mexican civil law relies
object documents, counterclaim and offer evidence, and a short
on the golden rule of “immediate and direct damages” which,
evidentiary period of time is allowed. The procedure ends with
therefore, does not allow punitive damages. Notwithstanding, to
closing arguments and judgment; which judgment cannot be subject to
what extent it violates public policy when those damages are
statutory appeal and will only be subject to a direct amparo proceeding
awarded in a foreign seat of arbitration while applying foreign law
to be heard by federal or collegiate circuit court. This procedure is
and to be enforced in Mexico poses an interesting question.
available whenever there is a possible violation of fundamental human
rights, such as lack of legal certainty or due process. Final remedies principally depend on the breach in question, as well
as the remedies that were requested.
Thus, staying in line with Mexico’s legal practice, the damages that
11.4 What is the effect of an arbitration award in terms of res
would be provided would likely only be direct and immediate
judicata in Mexico? Does the fact that certain issues
have been finally determined by an arbitral tribunal damages, lost profits, orders to refrain from certain activities, and
preclude those issues from being re-heard in a national orders to return assets. Thus, tribunals may impart declaratory
court and, if so, in what circumstances? awards, as well as decide on the costs and interests to be awarded.
In Mexico, arbitration awards have res judicata effect, provided that 13.2 What, if any, interest is available, and how is the rate of
they were not set aside or denied recognition and enforcement. It interest determined?
seems that declaratory awards would have to be subject to
recognition to ensure their validity, unless no set-aside proceedings Parties have the freedom to determine any interest rates that may
have started in Mexico. apply in their case. If the parties for whatever reason do not
establish these rates, the following may apply. In the case of a civil
11.5 What is the standard for refusing enforcement of an matter, the Federal Civil Code provides for an annual rate of nine
arbitral award on the grounds of public policy? percent. If, on the other hand, it is a commercial matter, then a six
percent rate shall apply, as provided in the Federal Commercial
This concept is still under construction. Courts have not Code.
determined yet whether it will be national or international public
policy. Furthermore, it is still undetermined whether it will be 13.3 Are parties entitled to recover fees and/or costs and, if so,
national or international arbitration public policy. Public policy is on what basis? What is the general practice with regard
normally the “catch-all” provision to challenge an arbitration award to shifting fees and costs between the parties?
or refuse its recognition and enforcement.
As with other arbitration matters, here, it is also highly dependent on
how the parties and arbitrators wish to conduct the arbitration.
12 Confidentiality
Although the arbitrators have wide latitude as to the particulars of the
process, in practice it is common for the arbitrators to divide costs
12.1 Are arbitral proceedings sited in Mexico confidential? In equally among all parties to the arbitration (exceptions exist for cases
what circumstances, if any, are proceedings not protected having extraordinary circumstances that justify such a decision).
by confidentiality? What, if any, law governs
In calculating costs, arbitrators are likely to take the following into
confidentiality?
consideration: i) amount in dispute; ii) case complexity; iii) time
devoted to the case; and iv) any other relevant circumstances that may
Yes, arbitral proceedings are confidential. Third parties, unless the
contribute to determining the reasonableness of the cost allocation.
parties and the tribunal expressly grant permission, do not have access
to proceedings. However, if the proceedings reach the setting aside or
enforcement stage, a judgment will have to be issued by a court. This 13.4 Is an award subject to tax? If so, in what circumstances
judgment will not be confidential unless the parties submit a special and on what basis?
request for the preservation of its confidentiality.
However, even if such a request exists and if the information is kept Awards are not taxed per se.
confidential, if legal duty or a court order requires the disclosure of
the information, this will trump the interest of the parties in keeping 13.5 Are there any restrictions on third parties, including
the information confidential. lawyers, funding claims under the law of Mexico? Are
contingency fees legal under the law of Mexico? Are
there any “professional” funders active in the market,
12.2 Can information disclosed in arbitral proceedings be either for litigation or arbitration?
referred to and/or relied on in subsequent proceedings?
There are no such restrictions, although it is not customary to enter
Absent clear existing protections concerning the issues’ confidentiality,
into contingency arrangements alone but rather certain fee
other judicial and arbitral bodies that have access to the ruling will be
combinations.
able to refer to and rely on subsequent proceedings.
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11. Barrera, Siqueiros y Torres Landa, S.C. Mexico
14 Investor State Arbitrations 15 General
14.1 Has Mexico signed and ratified the Washington 15.1 Are there noteworthy trends in or current issues affecting
Convention on the Settlement of Investment Disputes the use of arbitration in Mexico (such as pending or
Between States and Nationals of Other States (1965) proposed legislation)? Are there any trends regarding the
(otherwise known as “ICSID”)? type of disputes commonly being referred to arbitration?
Mexico
As of 2012, Mexico is not a Member State. Probably, the most noteworthy trend was the 2011 Amendment of
the Commercial Arbitration Act. This made the arbitration
procedure, as well as its enforcement, more efficient and clear cut.
14.2 How many Bilateral Investment Treaties (BITs) or other
multi-party investment treaties (such as the Energy Although the Inter American Convention on Commercial
Charter Treaty) is Mexico party to? Arbitration (The Panama Convention) is more recent than the NY
Convention, it is not frequently used in Mexico. The Panama
Mexico has 24 Bilateral Investment Treaties. Convention is unknown for many people. This situation may bring
Mexico is not a party to the Energy Charter Treaty. some difficulties in their application.
Likewise, Chapter 11 of NAFTA (North American Free Trade We believe it is necessary that Mexico becomes part of the
Agreement effective in Mexico, US and Canada since 1994) has International Centre for Settlement of Investment Disputes
produced important cases on State-Investor arbitration cases. (ICSID). This concern has been brought into the attention of the
Mexican Government.
14.3 Does Mexico have any noteworthy language that it uses
in its investment treaties (for example in relation to “most 15.2 What, if any, recent steps have institutions in Mexico
favoured nation” or exhaustion of local remedies taken to address current issues in arbitration (such as
provisions)? If so, what is the intended significance of time and costs)?
that language?
One of the biggest issues that arbitration institutions face in Mexico
Mexico uses the fair and equitable treatment principle. That is: is that arbitration costs are high and make arbitration expensive. In
1. The minimum standard. This requires that Mexico must Mexico, we have three important arbitration institutions: (i) ICC;
provide foreign investors and investment with fair and (ii) Centro de Arbitraje Mexico (CAM); and (iii) Cámara de
equitable treatment in accordance with international Comercio de Mexico (CANACO). The last two are Mexican
standards, including full protection. Institutions. CAM has modified their internal rules aligned with the
2. The national standard. This implies that there must not be ICC recent amendments. Likewise, CANACO has created a “low-
discrimination based on nationality. Thus, foreign investors cost” arbitration proceeding. This proceeding is very fast and less
must enjoy a treatment no less favourable than that applied to expensive.
Mexican investors in similar circumstances.
3. The most-favoured-nation standard. This implies that
Mexico must grant at least the same treatment to the investor
that has been provided to other investors in similar
circumstances.
4. Prohibition of performance requirements. Mexico may not
condition the receipt or continued receipt of an advantage or
incentive on the meeting of any requirements.
5. Free transfer of currency. Foreign investors may freely
transfer, without delay and in hard currency, profits,
dividends, and any type of cash stemming from or involving
their investment.
14.4 What is the approach of the national courts in Mexico
towards the defence of state immunity regarding
jurisdiction and execution?
Mexico does not recognise the state immunity principle as some
Anglo-Saxon countries.
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12. Barrera, Siqueiros y Torres Landa, S.C. Mexico
Omar Guerrero Rodríguez Mariana Fernández Salazar
Barrera, Siqueiros y Torres Landa, S.C. Barrera, Siqueiros y Torres Landa, S.C.
Paseo de los Tamarindos 150-PB Paseo de los Tamarindos 150-PB
Bosques de las Lomas Bosques de las Lomas
México D.F. 05120 México D.F. 05120
Mexico Mexico
Mexico
Tel: +52 55 5091 0162 Tel: +52 55 5091 0153
Fax: +52 55 5091 0123 Fax: +52 55 5091 0123
Email: ogr@bstl.com.mx Email: mfs@bstl.com.mx
URL: www.bstl.com.mx URL: www.bstl.com.mx
Education Education
Mr. Guerrero received his law degree from the Universidad Mrs. Fernández received her law degree from the Universidad
Iberoamericana, and obtained an LLM at the London School of Iberoamericana (2000–2005), and her Masters Degree (“LLM”)
Economics and Political Science, both with honours. from the University of California, Berkeley (2007–2008).
He completed postgraduate degrees on “Legal Framework for Principal Areas of Practice
International Business in Mexico” and Commercial Law at the Civil, Commercial, and Family Litigation, Amparo, Arbitration, and
Escuela Libre de Derecho. He also secured two additional bankruptcy proceedings.
diplomas in arbitration and also in Constitutional lawsuits Professional Background
(amparos) at the Barra Mexicana Colegio de Abogados. Mrs. Fernández joined Barrera, Siqueiros y Torres Landa, S.C. in
Principal Areas of Practice 2002, although in 2008 she worked for Miller, Candfield, Paddock
He has excelled in areas of Litigation (mainly Commercial, & Stone, P.L.C, Detroit, MI, for several months in the Commercial
Reorganisation and Bankruptcy and Administrative); Commercial Litigation department.
Arbitration and Economic Competition- Antitrust Law. Recognitions
Professional Background She graduated with “Honours” from the Universidad
Mr. Guerrero has been a partner of Barrera, Siqueiros y Torres Iberoamericana due to her Academic Excellency. She was
Landa, S.C. since 2000. granted the Fulbright Scholarship to study the LLM at the
Recognitions University of California, Berkeley. It was granted by the García-
Mr. Guerrero has been recognised among different publications Robles foundation and the Department of State of the United
for his professional development throughout his career, including States of America (July 2007 - May 2008).
Chamber’s, Who’s Who, Best Lawyers and plc.
Mr. Guerrero has written more than 30 articles of different themes
such as Arbitration, Economic Competition- Antitrust, and
Commercial Litigation, among others.
He is the current head of the antitrust section of the Mexican Bar
Association.
Barrera, Siqueiros y Torres Landa, S.C. (BSTL) is a leading law firm in Mexico with more than 60 years of experience in the
Mexican market place. It offers personalised, preventive, and strategic legal solutions to their local and international clients,
operating in industry, trade and the public sector.
Our expertise in the ever-changing legal, commercial, and corporate environment makes us the most reliable option in terms of
advice on corporate, tax, labour, competition, litigation and ADR’s and environmental matters, among others, practicing in strict
adherence to ethical standards and committed to achieving excellence in serving our clients.
To optimise the results of our work, we offer comprehensive consulting to every client and are able to bring together
multidisciplinary teams for specific transactions. Our most important asset is a full staff of associates and partners who have
studied abroad or have had experiences in internships in other countries. Likewise, most of our partners and associates lecture
in the most recognised universities in Mexico.
Our team comprises over seventy highly professional and academically accomplished attorneys, both in our Mexico City and
Monterrey offices, who are ready to serve. We are also fond of our social responsibility policy.
BSTL’s greatest satisfaction is providing excellent services and sharing the success or our clients.
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Corporate Governance Pharmaceutical Advertising
Corporate Recovery & Insolvency Private Client
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