Numerous pitfalls await parties that assume that proceedings in Mexican courts unfold in the same way as those in the courts of their own jurisdictions. Many foreign companies operating in Mexico may be unaware of how drastically Mexican litigation procedure can affect a dispute. Whether a company is contemplating bringing an action or has been sued in Mexico, it risks losing its case if it does not avoid the following traps for the unwary.
Foreign parties may be surprised by the comprehensiveness and detail of Mexican pleadings. Pleadings are required to set forth a full narration of each party's version of the facts and include all supporting documents. Thus, for example, the complaint in a Mexican proceeding contains much more than the short and plain statement of the facts that is often found in a US notice pleading. Similarly, the defendant's reply must:
- include all defences and any counterclaims;
- identify all supporting factual witnesses; and
- attach all documentary evidence.
As a general rule, a document that has not been submitted with the parties' pleadings will not be considered, and any factual witnesses that were not identified in the pleadings will not be allowed to testify.
The submission of all documentary evidence along with the pleadings may strike foreign parties as premature, but it makes more sense in the Mexican context. There is very little discovery in Mexican proceedings and no mechanism for party-directed document production or depositions. While the court may order the production of certain documents or the testimony of certain witnesses after the pleadings have been submitted, such discovery is usually limited.
Perhaps the most important aspect of a Mexican commercial litigation proceeding is the short period of time given to respond to a complaint. Pursuant to the Commercial Code, the general rule is that the defendant be granted only 15 business days (after being served) to submit its reply. The defendant may have even less time to respond if the case is a summary, special or oral proceeding. In summary proceedings (which are used when the dispute involves a negotiable instrument) and certain special proceedings (eg, those involving guarantee trusts), the defendant has as few as eight business days to submit its defence.
Parties are advised against calling opposing counsel to arrange an extension. In contrast to other legal systems, only in exceptional circumstances can parties to a Mexican commercial proceeding stipulate a schedule. Further, Mexican legal proceedings – as in most civil law systems – are controlled by the court, and Mexican courts do not normally grant extensions, even for good cause. In short, there is little alternative to complying with the response date, as onerous a burden as it may be.
If a party is involved in a dispute that could lead to litigation, it may be unable to obtain any information until the complaint has been served. Mexican proceedings and court filings are not public, and the daily publications contain little more than the names of the parties. Furthermore, there is no database that lists all the court proceedings that are currently being handled. Therefore, it is a difficult task to learn of a lawsuit filed against a company before it is served.
In preparing a reply and the supporting documents within the short time allotted, the defendant must also take into account the time-consuming filing requirements of Mexican courts. The foremost of these requirements is the power of attorney, which proves to the court that the party's Mexican counsel is authorised to represent it.
The power of attorney must satisfy certain formal requirements in order to be valid. To begin with, a notary public is needed. Foreign parties should be aware that notaries in Mexico are independent professionals that do not work in law firms and generally maintain a complicated schedule. Moreover, if the power of attorney is granted by a company, a concise description of the company and its constitutional acts must be included; failure to do so may give the opposing party grounds to file a challenge to the submission, which could result in a judgment against the company. Even if unsuccessful, such a motion can delay the case, because the court's decision on the power of attorney can be appealed on an interlocutory basis.
Another significant requirement is that all documents submitted to the court be original or certified copies. While the court can accept copies that are not certified, it may accord them less probative weight. The certification of documents is performed by a notary, who examines the original document and attests that the copy is a true copy.
Similarly, Mexican law mandates that all documents not in Spanish be translated. The translation and certification of these documents should be done by a translator who is authorised to do so by the court. The federal judicial administration and all state judicial administrations maintain a list of qualified expert translators. As with the document certification process, the preparation of certified translations requires time and should be initiated as soon as possible. Further, the quality of the translation is essential, as the judge will decide on the Spanish version before the court.
Finally, defendants should allow additional time for delivery of their reply to the relevant court, as Mexican courts do not provide for the electronic filing of submissions.
Nowhere are the differences between Mexican and some foreign legal systems more acute than in judicial proceedings. In light of the significant strategic decisions required at the outset of Mexican litigation, companies operating in Mexico would be well advised to ensure that they have a plan for responding quickly to any lawsuit.
For further information on this topic please contact Luis Enrique Graham, Marcelo Blackburn or Angelica Huacuja at Chadbourne & Parke by telephone (+52 55 3000 0600), fax (+52 55 3000 0698) or email (email@example.com, firstname.lastname@example.org or email@example.com).
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