Recent decision impacts special proceedings on commercial transactions and arbitration

The 2011 reform that introduced the special proceedings on commercial transactions and arbitration to Mexico's Code of Commerce1 was intended to regulate on a more expedited and efficient manner the judicial intervention for commercial arbitration.

Said celerity and efficiency was attained, mainly, through a combination of two elements: 1) that there was no appeal against interim decisions, nor against the final judgment issued in the special proceedings; and 2) that the only mechanism available against the judgment was the amparo directo.

Likewise, with said reform the proceedings for the annulment or execution of arbitral awards was no longer done through ancillary proceedings and was transformed into full-fledged "proceedings." Accordingly, the only applicable writ of amparo available against the final judgment issued in the proceedings was the amparo directo, or single instance amparo (prior to the reform, the available recourse was the amparo indirecto, or dual instance amparo).

However, a recent decision on a contradiction of rulings2 issued by the First Chamber of Mexico's Supreme Court of Justice, has decided in a surprising manner that the type of amparo that is applicable against the final judgment in the aforementioned special proceedings is not the amparo directo, but the amparo indirecto.3

According to the jurisprudence, which is mandatory from Dec. 9, 2019, since the special proceedings on commercial transactions and arbitration do not decide over the merits of the case, as that would have been the subject of the arbitration, the judgment cannot be considered as a decision that can be attacked through the amparo directo, in accordance with Article 170 of the Law of Amparo.4

The First Chamber of the Supreme Court determined that, since the annulment of execution of the award is the only aspect that must be considered in the special proceedings for commercial transactions and arbitration, and that the judgment is one that is issued after the arbitration is concluded, the appropriate recourse against it is the amparo indirecto.5

By directing the parties to the amparo indirecto, there is now a possibility of a third judicial intervention based on the "recurso de revision" (revision recourse) against the ruling in the amparo.6 Differently, said possibility is only available in amparo directo in exceptional circumstances that will rarely arise in proceedings for the annulment or execution of an arbitral award.7

In summary, since the date of entry into force of this jurisprudence, the execution or annulment of an arbitral award in Mexico must be submitted, first, to a judicial authority in accordance with the special proceedings, subsequently, to an amparo indirecto before a district judge and, finally, to a revision recourse before a circuit collegiate tribunal, all of which may result in the proceedings for the annulment or execution of arbitral awards being subject to delays, and becoming much more complex.