Enforcement of foreign judgements in Mexico
Dirk Roger Rissel, LL.M.
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Mexico´s legislation prior to "the
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
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
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:
That the formalities provided for
in this code regarding letters rogatory from abroad, have been satisfied;
That they have not been rendered
as a consequence of the exercise of a realty action;
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;
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;
To be res judicata in the country
that rendered them, or that there is no ordinary recourse against them;
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;
That the obligation requested to
be carried out is not contrary to the public order in Mexico; and
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
Article 572 establishes: The letter
rogatory of the judge or court of the country of origin should be accompanied
of the following documentation:
An authentic copy of the judgement,
award or jurisdictional resolution;
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;
The translations to the Spanish
language which are necessary; and
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
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."