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Starting an arbitration proceeding
What is needed to commence arbitration?
Mexican law looks to the rules of arbitration adopted by the parties with regard to the commencement of proceedings. Typically, the arbitration commences with a request for arbitration.
Are there any limitation periods for the commencement of arbitration?
Unless the parties have specified otherwise, there are no limitation periods for the commencement of arbitration. The parties must take into account the applicable law on the statute of limitations in commencing arbitration.
Are there any procedural rules that arbitrators must follow?
The arbitrators must follow the procedural rules selected by the parties. Failing such agreement, or where the relevant procedural rules are silent on any particular matter, the tribunal may, subject to the provisions of the Commercial Code, conduct the arbitration in such manner as it deems fit.
Are dissenting opinions permitted under the law of your jurisdiction?
According to Article 1446 of the Commercial Code, in arbitration proceedings with more than one arbitrator, any decision of the tribunal will be adopted by majority, unless the parties have agreed otherwise. Dissenting opinions may be drafted, unless the parties have agreed otherwise.
Can local courts intervene in proceedings?
Pursuant to the Commercial Code, the courts may intervene in the proceedings. However, such intervention is limited.
Can the local courts assist in choosing arbitrators?
Special proceedings exist to assist the parties in designating an arbitrator or arbitrators.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can they compel parties to arbitrate? Can they issue subpoenas to third parties?
Under Mexican law, an arbitration agreement is binding upon the parties. In practice, the Mexican courts may submit the parties to arbitration, generally by referring a case with an arbitration agreement to arbitration. In practice, however, the courts will not compel a party to arbitrate.
In assisting tribunals, a court may issue subpoenas to third parties. However, this process is seldom used, as it is time consuming and may unduly delay the arbitration proceedings. Typically, arbitrators use their own powers to compel the parties to present witnesses or help in having third parties participate in the arbitration proceedings.
In what instances can third parties be bound by an arbitration agreement or award?
A party that has not agreed to arbitration may not be bound by an award.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
If the parties have not agreed on the language or languages to be used in the arbitration proceedings, the tribunal shall determine the language or languages to be used. If the parties have not agreed on the place of the arbitration proceedings, the tribunal will determine the place of arbitration, having regard to all circumstances of the case. Unless otherwise agreed by the parties, the tribunal may convene at any place it considers appropriate to consult among its members, to hear the parties, witnesses or experts, or to inspect goods, other property or documents.
How is evidence obtained by the tribunal?
Unless the parties have specified otherwise, the tribunal may direct the arbitration as it sees fit, including with regard to the determination of the admissibility, relevance and weight of the evidence. When filing their pleadings, the parties should include all documentary evidence which they consider relevant or refer to any such documents which they intend to present. Also, unless the parties have specified otherwise, the tribunal may decide whether to hold hearings to present evidence or oral pleadings, or to base the proceedings on written documents and other evidence. Typically, the tribunal will issues procedural orders, after consultation with the parties, to direct them as to how to present their case, including the evidence to be submitted.
What kinds of evidence are acceptable?
Under Mexican law, there are no limitations as to the evidence to be presented, except where obtaining or filing the evidence is not permitted by law. Typically, the parties file as evidence documents, witness statements and expert reports. Unless the parties have specified otherwise, the tribunal has the authority to appoint an expert to issue an opinion, and to request the parties to provide such expert with all relevant information, documents, merchandise or other goods. The tribunal, either on its own initiative or at the request of a party, may require the expert to appear at a hearing where the parties may cross-examine him and present their own experts to resolve points of conflict. If one of the parties presents no documentary evidence, the tribunal may continue the arbitration and issue the award based on the evidence presented. As general practice, in international arbitration, the parties and the arbitrators use the International Bar Association rules on the taking of evidence as a guideline.
Is confidentiality ensured?
Mexican law does not automatically grant confidentiality to the arbitration proceedings. Other than the standard duties of professional secrecy, any confidentiality agreement must be agreed by the parties and the arbitrators.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Since confidentiality is not automatic, any information may be disclosed in subsequent proceedings, except where confidentiality agreements entered into by the parties prohibit such disclosure. When arbitral awards are the subject matter of confirmation or vacating proceedings, the court may direct the parties to disclose information – even when confidentiality agreements exist – at their discretion.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Mexican law has no specific ethical code. Arbitrators and counsel are bound by any ethical standards of their profession, and any others provided for by the arbitration rules selected by the parties.
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