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What are the validity requirements for an arbitration agreement?
An arbitration agreement should be in writing and signed by the parties, or it may be in an exchange of letters, telexes, telegrams or faxes, or any other means of telecommunication that properly record the agreement. An arbitration agreement can also be inferred from a written complaint and a written answer to it where such inference cannot be denied. A reference made in an agreement to a document that contains a committing clause to arbitrate will constitute an agreement to arbitrate if such agreement is in writing and the reference creates the implication that such clause is part of the agreement (Article 1423 of the Commerce Code).
To be enforceable the agreement must also meet the following other basic requirements of any contract:
- It has a legal purpose;
- The parties’ consent was not given by error, or obtained by fraud or under duress; and
- The parties had full legal capacity to sign the agreement.
Arbitration agreements can cover both disputes that have arisen and disputes that may arise in the future (Article 1416 of the Commerce Code).
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
The Mexican courts generally enforce arbitration clauses. There is a trend to recognise arbitration clauses and promote alternative dispute resolution. Arbitration has been recognised at the constitutional level and a recent reform to the Commerce Code makes it easier to enforce an arbitration clause when one of the parties wrongfully brings a claim before the Mexican courts.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
There are no rules or restrictions set in the Commerce Code regarding the consolidation of arbitral proceedings. In principle, the rules of consolidation established in the arbitral rules of the most common institutions, such as the International Chamber of Commerce, the International Centre for Dispute Resolution and the LCIA, can be easily applied in arbitrations that have Mexico as their seat.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
The tribunal shall decide on the dispute in accordance with the principles of law chosen by the parties. If the parties do not set forth the law that is to govern the substance of the dispute, the arbitral tribunal will determine the applicable law, considering the characteristics and the nexus of the matter (Article 1445 of the Commerce Code).
Are there any provisions on the separability of arbitration agreements?
Yes, pursuant to the Commerce Code, an arbitration clause included within the wording of a contract will be deemed as an agreement independent from the other stipulations of the contract. In other words, if the arbitral tribunal declares the main contract to be null and void, this will not entail the nullity of the arbitration clause (Article 1432 of the Commerce Code).
Are multiparty agreements recognised?
There are no specific restrictions in the Commerce Code against multi-party arbitration agreements. In any event, the general provisions regarding arbitration agreements are applicable. It would be important, however, to give the parties the possibility of participating in the arbitration in a fair and equitable manner, ensuring as much reciprocity of rights as possible.
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