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Recognition and Enforcement of foreign judgements in Mexico

Rechtsanwalt Dr. Dirk Roger Rissel, LL.M.

* * *




 

Mexico´s legislation prior to "the 1988 amendments"

The year of 1988 brought important changes to the Federal Code of Civil Procedure. 

Prior to the 1988 amendments the Federal Code of Cicil Procedure only contained some scarce provisions pertaining to the enforcement of foreign judgements: 

Article 428 of the Federal Code of Civil Procedure addressed the question of enforcement of foreign judgements. It empowered the Mexican court, prior to enforcing the judgement, to determine "whether or not said judgement is contrary to the laws of the Republic, treaties or principles of international law." In the affirmative, the judgement in question should be sent back with a letter rogatory articulating the reasons that impeded the enforcement. 

Article 605 of the Federal Code of Civil Procedure enumerated the conditions that foreign judgements should comply with in order to be enforced in Mexico. 

Article 606 established the competence of the Mexican judge to enforce a foreign judgement, whereas Articel 607 detailed the judicial proceedings before a Mexican court (known as "homologación") to provide a foreign judgement with executive force when it had to be applied coactively. 

Finally, Article 608 established the principle that the Mexican judge should not inquire into the substance of the foreign judgement, nor into its legal or factual aspects, but only examine its authenticity and to determine whether or not it should be enforced in conformity with the applicable Mexican laws. 

At that time, Mexican judges had confronted problems when they had to apply these scarce and rather concise provisions without a procedural mechanism to address these matters in depth, not having the guidance provided by treaties or international conventions, nor the jurisprudence created by the Mexican courts, including its Supreme Court.
 
 

International treaties relevant to the enforcement of foreign judgements in Mexico

A drastic change occurred in the period between 1978 and 1988 when in a relatively short period of time Mexico became a party to the following international instruments on the recognition and enforcement of foreign judgements:

  • the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)

  • the Inter-American Convention on International Commercial Awards (1975)

  • the Inter-American Convention on the Extraterritorial Validity of Foreign Judgements and Arbitral Awards (1979)

  • the Inter-American Convention on Competence in the International Sphere for the Extraterritorial Validity of Foreign Judgements (1984)

Status and legislation related to the enforcement of foreign judgements

The legal regime for the enforcment of foreign judgements established by the Federal Court of Civil Procedure is contained in Articles 564 – 568 and 569 – 577. 

Most of these provisions appear to have been inspired by the Inter-American Convention on the Extraterritorial Validity of Foreign Judgements and Arbitral Awards and by the few and concise provisions contained in the Code of Civil Procedure for the Federal District prior to the 1988 amendments, particularly Articles 604 – 608.

To take care of the fact that Article 605 of the Code of Civil Procedure for the Federal District (in force until 1988) did not provide anything on the matter of valid jurisdiction on the part of the foreign judge, Article 564 was created by the Mexican legislator.

Article 564 provides: The jurisdiction assumed by the foreign court shall be recognized in Mexico regarding the enforcement of a foreign judgement, when said jurisdiction has been assumed by reasons resulting compatible or analogous with the national law, save in those cases which are of the exclusive jurisdiction of the Mexican courts. This provision has to be read in conjunction with Article 567 which declares said selection "not valid" when it results "in the exclusive benefit of a party but not of all the parties involved". Thus, the final determination of whether the forum selection clause is to be considered to the exclusive benefit of only one of the parties, shall be a matter for the judge´s discretion.

The first paragraph of Article 569 reads: Judgements, private arbitral awards and other foreign jurisdictional resolutions shall have validity and be recognized in the Republic of Mexico in everything which is not contrary to the internal public order in the terms established by this code and other applicable laws, save what is provided by the treaties and conventions to which Mexico is a party. According to this provision, when a Mexican judge is to enforce a foreign judgement, private arbitral award or any "other foreign jurisdictional resolution" rendered by a foreign judge in the State of origin which is a party to a treaty or convention that is in force in Mexico, said judge shall act in strict compliance of the pertinent international instrument. Mexican judges should refer to the provisions of the Federal Code only when said international instruments are inadequate because of omissions or lacunae.
 
 

Requirements to enforce a foreign judgement in Mexico and competent court

Procedural and substantive requirements have to be distinguished. Substantive requirements have to do, e.g., with the exercise of proper and valid jurisdiction by the foreign judge (known as "competencia de origin"). In this respect the criteria established by the provisions included in Articles 564 – 568 have to be carefully reviewed. 

Article 571 adds the conditions that must be complied with to be provided with "executive force" when foreign judgements are to be enforced in Mexico coactively, in proceedings known as "exequatur" or "homologación".

Article 571 provides: The judgements, private arbitral awards and jurisdictional resolutions rendered abroad, may have "executive effect" if the comply with the following conditions:
 

I.

That the formalities provided for in this code regarding letters rogatory from abroad, have been satisfied;

II.

That they have not been rendered as a consequence of the exercise of a realty action; 

III.

That the judge or sentencing court had jurisdiction to take cognizance and decide the matter in accordance  with the recognized rules in the international sphere compatible with those adopted by this code;

IV.

That the defendant had been summoned or serviced in a personal manner in order to assure him/her "a fair trial", and the exercise of his/her defenses;

V.

To be res judicata in the country that rendered them, or that there is no ordinary recourse against them;

VI.

That the action generating them is not subject of another suit still pending between the same parties in Mexican courts, and in which suit the Mexican court has prevailed, or at least the letter rogatory had been transmitted and delivered to the Secretariat of Foreign Affairs or to the authorities of the State where the service of summons is to take place. This same rule is to be applied when a definitive judgement is rendered;

VII.

That the obligation requested to be carried out is not contrary to the public order in Mexico; and 

VIII.

That the requirements to be considered as authentic are complied with.

Notwithstanding the fulfillment of the enumerated conditions, the Mexican court may deny the enforcement if it is proven that in the country of origin foreign judgements or awards are not enforced in similar cases. 

That means that even when each of these conditions are fully complied with, this does not automatically guarantee the enforcement of the foreign judgement. The Mexican judge has the power to deny the requested enforcement, at his/her discretion, when it is proven that similar foreign judgements are not enforced in the country of origin. The so-called "principle of negative reciprocity" is applied. The principle of negative reciprocity is considered less cumbersome and more practical unlike the "positive reciprocity" which requires valid proof that the country of origin does permit the enforcement of similar kind of judgements.

Article 572 establishes: The letter rogatory of the judge or court of the country of origin should be accompanied of the following documentation:
 

I.

An authentic copy of the judgement, award or jurisdictional resolution; 

II.

An authentic copy of the records (i.e. "constancias") proving that the conditions in paragraphs IV and V of the previous article where complied with;

III.

The translations to the Spanish language which are necessary; and

IV.

That the party enforcing the judgement (i.e. "el ejecutante") has given a domicile to receive judicial notices in the same location as the court (i.e. "tribunal de homologación"). 

According to Article 573 the Mexican court having jurisdiction to enforce a foreign judgement is the court of the domicile of the defendant or, in the absence of it, the court of the place where his/her assets are located in the Mexican Republic.

Article 574 enumerates the requirement to be complied with in conducting the proceedings to provide a foreign judgement with "executive force", known in Mexico as "incidente de homologación". Both the plaintiff and the defendant should be personally served with the summons, giving each of them nine working days to advance their defenses or exercise their corresponding rights. If there is evidence, a special hearing shall be scheduled to admit only that evidence authorized by the court. A public prosecutor (i.e. "agente del ministerio público") is to take part in the proceedings, to exercise any pertinent rights. The decision rendered by the judge in these proceedings is appealable both, in case the enforcement is denied or in case it is granted.

It has to be pointed out that, in accordance with Article 575, neither the trial court ("tribunal de primera instancia"), nor the court of appeals are allowed to examine or decide over the justice or injustice of the foreign judgement, its rationale or the factual or legal grounds. 

Their role is limited to examine the authenticity of said judgement and to determine whether it should be enforced in conformity with the applicable Mexican domestic legislation. 

According to Article 576 the court where the proceedings of "homologación" take place retains jurisdiction to decide on any question related to the coactive enforcement of the foreign judgement, such as repossession, deposit, sale at a public auction, etc. Any monies resulting from auction should be made available to the foreign judge. 

Article 577 introduced another innovation: when the foreign judgement or award cannot be enforced in its entirety, the Mexican court "may admit its partial validity, at the request of the interested party."

 

 


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