Starting an arbitration proceeding
What is needed to commence arbitration?
An arbitration procedure is usually commenced following the rules of institutional arbitrations (with the filing of a request for arbitration or a complaint, and with the appointment of the arbitral tribunal). However, in ad hoc arbitrations the procedure is usually commenced with the appointment of the sole arbitrator or the arbitral tribunal, and the filing of an arbitration complaint.
Are there any limitation periods for the commencement of arbitration?
In general terms, there is a 10-year limit to bring a commercial action either to arbitration or before the courts, although shorter limitation periods exist for specific actions.
Are there any procedural rules that arbitrators must follow?
No. The Commerce Code authorises arbitral tribunals to conduct proceedings in the manner that they deem appropriate without imposing any specific or mandatory rules. The only mandatory principles are those related to the respect of due process.
Are dissenting opinions permitted under the law of your jurisdiction?
Yes, although they do not have any legal weight or value.
Can local courts intervene in proceedings?
Yes; although the general rule is that courts should not intervene in the arbitration, the Commerce Code establishes several types and cases of judicial intervention in support of arbitration (eg, for obtaining evidence, appointing arbitrators, issuing or enforcing provisional or interim relief).
Can the local courts assist in choosing arbitrators?
Yes, a court may choose the sole arbitrator or the chair of the arbitral tribunal when the parties and/or the arbitral institutions have failed to do so.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
Unless otherwise agreed by the parties, if the respondent fails to participate in the arbitration, the arbitral tribunal shall continue the proceedings. However, such failure to participate shall not be considered as consent to the claimant’s pleadings (Article 1441 of the Commerce Code).
Further, if either party fails to appear at a hearing or fails to file any evidence, the arbitral tribunal may continue the proceedings and issue a final award based on the evidence presented.
The courts have no authority to force parties to appear in an arbitration; the courts can reject a judicial action filed before them only if the dispute is subject to arbitration, and remit the parties to arbitration. This remission, however, does not imply a judicial order forcing the parties to appear in an arbitration; it is only a rejection to hear the case at the judicial instance.
In what instances can third parties be bound by an arbitration agreement or award?
There is no specific provision regulating circumstances where third parties (non-signatories) are bound by an arbitration agreement. In fact, parties that have not signed or consented to an arbitration agreement cannot be deemed to be bound by it. Consent is essential under Mexican law to be bound by an arbitration agreement. However, since Mexican law allows consent to be construed from a party’s conduct, it would not be strictly necessary to have a signed agreement to bind a third party to an arbitration. If there is enough evidence to support that the said party consented in writing to the arbitration, then that would be enough to bind.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
The Commerce Code does not establish a mandatory default language or seat; the arbitral tribunal may make that determination if the parties do not reach an agreement in this regard.
How is evidence obtained by the tribunal?
The Commerce Code establishes that the parties may freely agree on the procedure to be followed by the arbitral tribunal. In the absence of such agreement, the tribunal may conduct the proceedings as it may deem appropriate. This power conferred to the arbitral tribunal includes the discretion to determine the admissibility and relevance of the evidence and, therefore, the tribunal has the power to determine, in each case, the procedural rules applicable to witness testimony (Article 1435).
The International Bar Association Rules on the Taking of Evidence are often adopted in arbitration proceedings; arbitral tribunals often use them as a guide even where the parties have not agreed to their adoption.
In addition, the arbitral tribunal or either party (with the prior authorisation of the tribunal) may request the presence of a judge for the filing of evidence (Article 1444 of the Commerce Code).
What kinds of evidence are acceptable?
There are no restrictions as to the type of evidence acceptable in arbitration carried out in Mexico. The arbitral tribunal has broad authority to determine the admissibility of the evidence filed.
Is confidentiality ensured?
There is no provision in Mexican law specifically regulating the confidentiality of arbitration proceedings; the arbitration chapter of the Commerce Code adopts the Model Law of the UN Commission on International Trade Law on arbitration, which itself is silent on the issue of confidentiality in arbitration proceedings. However, Article 1435 of the Commerce Code gives the parties broad discretion to determine the arbitration proceedings and, therefore, the parties have the authority to decide whether the arbitration should be confidential. Accordingly, any confidentiality agreement included by the parties in their arbitration agreement would be binding on the arbitrators as well.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
If a judicial action to enforce or set aside an award is filed, then all the information of the arbitral proceedings may be disclosed for the sole purposes of said action.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
There are no specific legal provisions or rules regarding ethical duties of arbitrators. However, independence and impartiality are features required by the Commerce Code. Moreover, the Mexican Bar Association has an ethical code that is usually followed in arbitration matters too.
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