The International ComparativeLegal Guide to International Arbitration2012 Edition.

International Arbitration 20129th Edition

A practical cross-border insight into international arbitration work

The International Comparative Legal Guide to:

Abreu AdvogadosAdvokaturbüro Dr Dr Batliner & Dr Gasser Aivar Pilv Law OfficeAkerman Senterfitt Ali Budiardjo, Nugroho, ReksodiputroAnderson Mori & Tomotsune Barrera, Siqueiros y Torres Landa, S.C.Borden Ladner Gervais LLPBoss & YoungClayton UtzClifford Chance CIS LimitedCMS Cameron McKenna SCADe Brauw Blackstone WestbroekDr. Colin Ong Legal ServicesDr. K. Chrysostomides & Co LLCFerreira Rocha & AssociadosG Grönberg Advokatbyrå AB Geni & KebeGeorgiev, Todorov & Co.GESSEL Attorneys at lawGleiss LutzHabib Al Mulla & Co.Hajji & Associés – AvocatsHomburgerJiménez Cruz PeñaK&L Gates LLPKachwaha & Partners

King & Spalding International LLPLazareff Le BarsLee and Li, Attorneys-at-Law Lenczner SlaghtLendvai & SzörényiLinklaters LLPMaples and CalderMatheson Ormsby PrenticeMiranda Correia Amendoeira & Associados RL Motieka & AudzevičiusNunziante Magrone Studio Legale AssociatoOrrick, Herrington & Sutcliffe LLPPUNUKA Attorneys & SolicitorsQuisumbing Torres, member firm of Baker & McKenzie InternationalSedgwick ChudleighSergio Bermudes AdvogadosSherby & Co., Advs.Sidley Austin LLPSołtysiński Kawecki & Szlęzak Tilleke & GibbinsTonucci & PartnersVasil Kisil & Partners Wald e Associados Advogados WEBER & CO.WerksmansWilmer Cutler Pickering Hale and Dorr LLP

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Wilmer Cutler Pickering

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ISBN 978-1-908070-32-6

ISSN 1741-4970

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The International Comparative Legal Guide to: International Arbitration 2012

General Chapters:

1 A Comparative Review of Emergency Arbitrator Provisions: Opportunities and Risks – Marc S. Palay &

Tanya Landon, Sidley Austin LLP 1

2 I Know I am Going to Win, but What About my Money? Ensuring that Arbitration is Worth

the Effort – Tom Sprange & Tom Childs, King & Spalding International LLP 8

3 Mandatory Arbitration and Consumer Class Actions in Canada and the United States –

Lawrence Thacker, Lenczner Slaght 15

4 When is an Arbitration International and What Are the Implications? A Traditional Perspective on

the Enforcement of Annulled Awards – Gustavo Fernandes de Andrade & André Chateaubriand Martins,

Sergio Bermudes Advogados 21

Preface:

Preface by Gary Born, Head of International Arbitration Group, Wilmer Cutler Pickering Hale and Dorr LLP

Asia Pacific:

5 Overview Dr. Colin Ong Legal Services: Dr. Colin Ong 27

6 Australia Clayton Utz: Doug Jones AO 37

7 Brunei Dr. Colin Ong Legal Services: Dr. Colin Ong 47

8 China Boss & Young: Dr. Xu Guojian 56

9 Hong Kong Clayton Utz in association with Hayley & Co: Glenn Haley & Patrick Daley 67

10 India Kachwaha & Partners: Sumeet Kachwaha & Dharmendra Rautray 79

11 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Sahat A.M. Siahaan &

Windri Marieta Ayuningtyas 88

12 Japan Anderson Mori & Tomotsune: Aoi Inoue 98

13 Philippines Quisumbing Torres, member firm of Baker & McKenzie International:

Donemark J.L. Calimon & Camille Khristine I. Aromas 106

14 Singapore K&L Gates LLP: Ian Fisher & Andrea Utasy 114

15 Taiwan Lee and Li, Attorneys-at-Law: Angela Y. Lin & Jeffrey Li 122

16 Vietnam Tilleke & Gibbins: Michael K. Lee & Doan Ngoc Tran 130

Continued Overleaf

Central and Eastern Europe:

17 Overview GESSEL Attorneys at law: Dr Beata Gessel-Kalinowska vel Kalisz, FCIArb 138

18 Albania Tonucci & Partners: Neritan Kallfa & Majlinda Sulstarova 142

19 Bulgaria Georgiev, Todorov & Co.: Alexander Katzarsky & Georgi Georgiev 150

20 Cyprus Dr. K. Chrysostomides & Co LLC: George Mountis & Victoria-Zoi Papagiannis 160

21 Estonia Aivar Pilv Law Office: Pirkka-Marja Põldvere & Ilmar-Erik Aavakivi 169

22 Hungary Lendvai & Szörényi: András Lendvai & Gábor Baranyai LL.M 177

23 Lithuania Motieka & Audzevičius: Ramūnas Audzevičius & Rimantas Daujotas 184

24 Poland Sołtysiński Kawecki & Szlęzak: Dr. Marcin Olechowski & Sławomir Uss 192

25 Romania CMS Cameron McKenna SCA: Horia Draghici & Bogdan Vetrici-Soimu 200

26 Russia Clifford Chance CIS Limited: Timur Aitkulov & Julia Popelysheva 210

27 Ukraine Vasil Kisil & Partners: Oleksiy Filatov & Pavlo Byelousov 221

Western Europe:

28 Overview Gleiss Lutz: Stefan Rützel & Stephan Wilske 230

29 Austria WEBER & CO.: Stefan Weber & Ewald Oberhammer 234

30 Belgium Linklaters LLP: Joost Verlinden & Stijn Sabbe 242

The International Comparative Legal Guide to: International Arbitration 2012

31 England & Wales Wilmer Cutler Pickering Hale and Dorr LLP: Wendy Miles & Kate Davies 252

32 France Lazareff Le Bars: Benoit Le Bars & William Kirtley 269

33 Ireland Matheson Ormsby Prentice: Nicola Dunleavy & Gearóid Carey 278

34 Italy Nunziante Magrone Studio Legale Associato: Prof. Dr. Gabriele Crespi Reghizzi 287

35 Liechtenstein Advokaturbüro Dr Dr Batliner & Dr Gasser: Dr. Johannes Gasser &

Benedikt König 296

36 Netherlands De Brauw Blackstone Westbroek: Eelco Meerdink & Edward van Geuns 304

37 Portugal Abreu Advogados: José Maria Corrêa de Sampaio & Pedro Sousa Uva 313

38 Sweden G Grönberg Advokatbyrå AB: Einar Wanhainen & Johannes Lundblad 325

39 Switzerland Homburger: Felix Dasser & Balz Gross 332

Latin America:

40 Overview Akerman Senterfitt: Luis M. O'Naghten 341

41 Brazil Wald e Associados Advogados: Arnoldo Wald & Rodrigo Garcia da Fonseca 349

42 Dominican Republic Jiménez Cruz Peña: Marcos Peña Rodríguez & Laura Medina Acosta 356

43 Mexico Barrera, Siqueiros y Torres Landa, S.C.: Omar Guerrero Rodríguez &

Mariana Fernández Salazar 365

Middle East / Africa:

44 Overview Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos 374

45 OHADA Geni & Kebe: Mouhamed Kebe & Fakha Toure 380

46 Angola Miranda Correia Amendoeira & Associados RL: Agostinho Pereira de Miranda &

Cláudia Leonardo 387

47 Israel Sherby & Co., Advs.: Eric S. Sherby & Sami Sabzerou 395

48 Morocco Hajji & Associés – Avocats: Amin Hajji 405

49 Mozambique Ferreira Rocha & Associados in association with Abreu Advogados:

Paula Duarte F. Rocha 411

50 Nigeria PUNUKA Attorneys & Solicitors: Anthony Idigbe & Omone Tiku 419

51 South Africa Werksmans: Des Williams 434

52 UAE Habib Al Mulla & Co.: Gordon Blanke & Soraya Corm-Bakhos 445

North America:

53 Overview Orrick, Herrington & Sutcliffe LLP: Ian Johnson & Matt Prewitt 455

54 Bermuda Sedgwick Chudleigh: Mark Chudleigh & Chen Foley 461

55 BVI Maples and Calder: Arabella di Iorio & Victoria Lord 470

56 Canada Borden Ladner Gervais LLP: Daniel Urbas & Robert J.C. Deane 480

57 Cayman Islands Maples and Calder: Mac Imrie & Luke Stockdale 489

58 USA K&L Gates LLP: Peter J. Kalis & Roberta D. Anderson 500

WWW.ICLG.CO.UKICLG TO: INTERNATIONAL ARBITRATION 2012© Published and reproduced with kind permission by Global Legal Group Ltd, London

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Barrera, Siqueiros y Torres Landa, S.C.

Mexico

1 Arbitration Agreements

1.1 What, if any, are the legal requirements of an arbitrationagreement under the laws of Mexico?

Arbitration agreements in Mexico require a written agreement

whereby parties to the arbitration expressly agree to arbitrate.

While verbal agreements to arbitrate are unenforceable, other

means, such as exchange of letters, telex, and telegrams, among

others, are enforceable. This will include electronic

communications, although evidence of representation will be part

of the contention. In addition, there must be evidence of the

fulfilment of the relevant requirements as set out by the

UNCITRAL Model Law on electronic commerce, which Mexico

adopted in 2000. Furthermore, an agreement to arbitrate may be

considered valid if notice of the arbitration agreement is given, and

the other party does not deny its validity.

When a party seeks to enforce the relevant award, Mexican courts

require that the enforcing party files an original, or certified copies,

of the arbitration agreement duly translated into Spanish.

1.2 What other elements ought to be incorporated in anarbitration agreement?

Under Mexican law, an arbitration agreement is a waiver to appear

before national courts. Therefore, an arbitration agreement must be

clear and be expressed in a manner so as not to raise doubts that the

parties seek to arbitrate their disputes. From the contractual

standpoint, it must be clear that the parties: (i) must have the

capacity and proper representation to execute the arbitration

agreement; (ii) must specify whether some or all disputes will be

resolved through arbitration; (iii) must be certain that the disputes

are capable of being resolved through arbitration; and (iv) must

contain the relevant waivers to the institutional arbitration rules that

will be applicable or the relevant ad hoc provisions applicable to

such arbitration. In this token, the clearer and simpler the

arbitration clause, the better.

Parties to an arbitration should be aware that matters of public

policy or public order cannot be resolved by arbitration (e.g., family

law, criminal matters, anti-trust, intellectual property, etc.).

1.3 What has been the approach of the national courts to theenforcement of arbitration agreements?

With the exception of those areas covered by public policy or public

order, the general approach has been to enforce arbitration

agreements. The January 27, 2011 Amendment to the Mexican

Commercial Code that contains the relevant chapter on arbitration

–articles 1415 to 1480–, and which is also known as the “Mexican

Arbitration Law” confirms the enforceability of arbitration

agreements. In this token, a Mexican court must refer the parties to

arbitration unless: (i) the relevant party fails to raise the issue in its

first appearance in court; (ii) the agreement is notoriously null and

void or incapable of being performed; and/or (iii) the plaintiff

evidences that there is a res iudicata judgment or award that

declared the nullity of the arbitration agreement.

Furthermore, Mexican Supreme Court decisions have made it clear

that Mexico is to be an arbitration friendly country. Due to the 2011

amendment of the Mexican Commercial Arbitration Act, the

legislature has evidenced its commitment to enforcing arbitration

agreements as well.

2 Governing Legislation

2.1 What legislation governs the enforcement of arbitrationproceedings in Mexico?

The Federal Commercial Code, as amended in January 2011, as

well as international treaties and conventions to which Mexico is

party govern the enforcement of arbitration proceedings in Mexico.

The Federal Commercial Code adopted the 1985 UNCITRAL

Model Law in 1993 and has always tried to follow the best

international practices in arbitration by actively participating in the

UNCITRAL discussions related to international commercial

arbitration.

International: various international legal instruments govern

arbitration enforcement with regards to arbitration in Mexico. The

ones that take relevance are: (i) the UN Convention on the

Recognition and Enforcement of Foreign Arbitral Awards,

otherwise known as the “New York Convention” (1958); (ii) the

Inter-American Convention on International Commercial

Arbitration, the “Panama Convention” (1975); and (iii) the Inter-

American Convention on Extraterritorial Validity of Foreign

Judgments and Arbitral Awards, the “Montevideo Convention”

(1979).

Domestic: the Mexican Arbitration Act, found in the Commercial

Code, is the internal legislation concerned with commercial

arbitration. The Commercial Arbitration Act was amended in 2011.

The purpose of the amendment was to provide clearer and speedier

proceedings for court assistance and to control arbitration including

but not limited to: (i) appointing and removing of arbitrators; (ii)

obtaining evidence; (iii) granting provisional measures; (iv) setting

Mariana Fernández Salazar

Omar Guerrero Rodríguez

ICLG TO: INTERNATIONAL ARBITRATION 2012WWW.ICLG.CO.UK© Published and reproduced with kind permission by Global Legal Group Ltd, London

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Barrera, Siqueiros y Torres Landa, S.C. Mexico

aside awards; and (v) recognising and enforcing awards.

A drawback is that, due to the 2011 Amendment, there: (i) are no exparte provisional measures; and (ii) is liability for petitioners and

arbitration tribunals with respect to damages caused by granting

provisional measures. Both features have been a source of criticism

in the Mexican arbitration landscape.

2.2 Does the same arbitration law govern both domestic andinternational arbitration proceedings? If not, how do theydiffer?

The Mexican Commercial Arbitration Act gives precedence to

international conventions such as the 1958 New York Convention.

Since the 1958 New York Convention does not deal with procedural

features (neither does the UNCITRAL Model Law), it leaves such

freedom to each country to implement the best proceedings to

achieve efficiency in accordance with their legal tradition. At the

end, the overall objective is to have arbitration agreements and

awards subject to proper respect and enforcement.

2.3 Is the law governing international arbitration based on theUNCITRAL Model Law? Are there significant differencesbetween the two?

The Mexican Commercial Arbitration Act borrows heavily from the

1985 UNCITRAL Model Law and was adapted almost verbatim in

1993. Mexican law has implemented the relevant procedural

features of the 1985 UNCITRAL Model Law in accordance with

the civil tradition that Mexican belongs to.

Notwithstanding, there are a few items that are subject to criticism,

such as the 3-month term to file a complaint to set aside the award.

Under the Mexican procedural standpoint, such term is a little bit

excessive since the maximum term to file a challenge in Mexico is

45 business days. Notwithstanding, the verbatim incorporation of

the 1985 UNCITRAL Model Law and not wanting a departure from

its substantive provisions seems to be the relevant argument for

such rule to remain.

2.4 To what extent are there mandatory rules governinginternational arbitration proceedings sited in Mexico?

Mexican statutes and courts tend to favour and respect the freedom

to contract of the parties. Notwithstanding, whenever the parties

choose Mexico as their seat of arbitration, they must be wary that

courts will examine arbitrability and public policy seriously. Under

the 1958 New York Convention and the Mexican Commercial

Arbitration Act, both issues are subject to an ex officio review by

courts in setting-aside as well as recognition and enforcement of

arbitration awards.

3 Jurisdiction

3.1 Are there any subject matters that may not be referred toarbitration under the governing law of Mexico? What isthe general approach used in determining whether or nota dispute is “arbitrable”?

Although not made explicitly clear, generally, the matters that are

undeniably outside of the arbitration realm are those which fall

within the fields of family, criminal, intellectual property and anti-

trust law. Also unarbitrable are administrative and regulatory

matters involving adjudication by a governmental agency. Thus,

like many other countries, the demarcation in Mexico of what is

unarbitrable is not manifest. However, like in many other nations,

matters that concern public policy are generally not arbitrable.

3.2 Is an arbitrator permitted to rule on the question of his orher own jurisdiction?

Yes, he/she is. The Mexican Commercial Arbitration Act – as

contained as a chapter within the Commerce Code – follows the

kompetenz-kompetenz approach.

3.3 What is the approach of the national courts in Mexicotowards a party who commences court proceedings inapparent breach of an arbitration agreement?

The general approach is to defer to the arbitrators’ authority, and

enforce the agreement. Notwithstanding, the court will not refer the

parties to arbitration ex officio, but rather it will have to be subject

to an express defence of the respondent. Failing such defence, the

court will consider that the parties waived or rejected the arbitration

agreement and decided to submit their differences to a court of law.

3.4 Under what circumstances can a court address the issueof the jurisdiction and competence of the national arbitraltribunal? What is the standard of review in respect of atribunal’s decision as to its own jurisdiction?

The 2011 Amendment to the Mexican Commercial Arbitration Act

tried to clarify that arbitration agreements must be respected and

exceptionally declared null and void. Thus: (i) parties must abide

to arbitration if they agreed to an arbitration agreement; (ii) if one

party appears in court demanding the nullity of the arbitration

agreement, the court must grant the respondent the opportunity to

express its view; (iii) if the respondent does not raise the defence to

“refer the parties to arbitration”, the court will not refer the parties

to arbitration ex officio; and (iv) if the respondent raises such

defence, then the court must rule on the issue and if granted the

referral to arbitrate, then, it must suspend the court proceedings.

The court will follow a strict standard as to the agreement to

arbitrate being null, void or incapable of being performed since it

would have to be “notorious” and follow a “rigorous criterion”.

Likewise, it could reject or disavow the arbitration agreement

whenever there has been a prior arbitration award or res iudicatajudgment on the subject.

3.5 Under what, if any, circumstances does the national lawof Mexico allow an arbitral tribunal to assume jurisdictionover individuals or entities which are not themselves partyto an agreement to arbitrate?

The general rule is that third parties cannot be compelled to

arbitrate if they have not executed an arbitration agreement.

Notwithstanding, in practice, a similar process by which parties to

arbitration agree to arbitrate could be applicable. Third parties may

be judged as falling under the arbitral tribunal’s jurisdiction when:

1) there is evidence of communications between the parties in

question by which one party asserts the agreement to arbitrate and

the other party does not contest such submission; 2) where the third

party is incorporated, by reference, into an agreement having an

arbitration provision; and 3) where evidence can be shown that the

third party assented via the parties’ communication.


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3.6 What laws or rules prescribe limitation periods for thecommencement of arbitrations in Mexico and what is thetypical length of such periods? Do the national courts ofMexico consider such rules procedural or substantive,i.e., what choice of law rules govern the application oflimitation periods?

Mexico does not have a general and specific limitation period

demarcated for arbitration proceedings, although under the

Commercial Code, the general limitation period is ten years, unless

there is a specific statute of limitations (i.e. 5 years for conflicts

among shareholders).

The statute of limitations is subject to interruption through a judicial

complaint or similar judicial notice but there is no similar rule for

arbitration complaints. This is a “window of opportunity” for

subsequent amendments.

3.7 What is the effect in Mexico of pending insolvencyproceedings affecting one or more of the parties toongoing arbitration proceedings?

According to the Mexican Insolvency and Bankruptcy Law, those

pending proceedings against the insolvent party – including

arbitration proceedings – will not be suspended. Once the award is

enforceable, then it will be subject to express credit

acknowledgment by the conciliator and the judge of the insolvency

and bankruptcy proceedings.

4 Choice of Law Rules

4.1 How is the law applicable to the substance of a disputedetermined?

The parties can freely choose the applicable law on the merits of the

dispute. The substantive law normally appears from the inception

of the arbitration clause or the underlying agreement where the

arbitration clause is so contained. Failing such decision, then, the

arbitration tribunal would have to choose the applicable law on the

merits taking into account the different features of the dispute: (i)

parties involved; (ii) nature of the controversy and underlying

agreement; (iii) language of the parties; (iv) closest connection to

the subject-matter of the dispute; and (v) any other relevant fact to

assist in the determination of the applicable substantive law.

4.2 In what circumstances will mandatory laws (of the seat orof another jurisdiction) prevail over the law chosen by theparties?

The arbitration tribunal will give precedence to the applicable law

chosen by the parties, unless such law conflicts with arbitrability or

Mexican public policy.

4.3 What choice of law rules govern the formation, validity,and legality of arbitration agreements?

The law chosen by the parties to govern the substantive issues of the

arbitration agreement and underlying agreement will prevail on this

issue. Absent this agreement, the law of the execution of the

arbitration agreement governs the formation, validity and legality of

arbitration agreements, unless the parties have specified a different

law.

5 Selection of Arbitral Tribunal

5.1 Are there any limits to the parties’ autonomy to selectarbitrators?

Although no specific limits exist, if the selection process is deemed

to violate due process, then the agreement will likely not be upheld

in the interest of public policy.

Arbitrators must fulfil the “independence and impartiality”

requirement.

5.2 If the parties’ chosen method for selecting arbitrators fails,is there a default procedure?

A court may step in, by default, to determine the method for selecting

arbitrators if the parties’ chosen method fails either prior to a dispute,

or once it has begun. This mechanism was established to thwart

dilatory tactics. This method includes the list-procedure and

consultation to chambers of commerce and arbitration institutions in

order to find suitable arbitrators to resolve the dispute.

5.3 Can a court intervene in the selection of arbitrators? If so,how?

In the case that the contract or the agreed upon procedural rules do

not adequately address the selection of arbitrators, the court may

step in. This would happen in a few specific instances: a) if the

parties to the arbitration did not agree upon a procedure by which to

appoint arbitrators; b) if one or more of the parties fail to appoint

their desired arbitrator; c) if both parties agreed upon their

arbitrators, but the arbitrators cannot agree on a third and presiding

arbitrator; and d) the institution that was chosen to select the

arbitrators fails to do its job as provided for by the designated

arbitration rules.

The chosen arbitrators in all cases must meet the “independent and

impartial” requirement. Additionally, if the courts are considering

a foreign actor in the selection of the chair or sole arbitrator, the

court must perform a cost-benefit analysis of the arbitrator’s

nationality with regards to the arbitration. If a panel of three

arbitrators makes up the tribunal, it is common practice to appoint

a presiding arbitrator who is of a different nationality from the other

arbitrators. However, the nationality of the other arbitrators usually

is not an obstacle to arbitration. The court’s final decision on the

arbitral composition may not be appealed, but may be subject to a

constitutional challenge. Furthermore, the parties retain their right

to recuse the arbitrator appointed by the court.

The recent 2011 Amendment to the Commercial Code provides a

detailed procedure to appoint an arbitrator in the absence of the parties’

agreement. The procedure comprises a summary request (jurisdicciónvoluntaria) that is heard before a federal or local court at the place of

arbitration, depending on the choice of the requesting party. The

judgment cannot be appealed but amparo proceedings are available.

The parties preserve their right to reject the arbitrator appointed by the

court if they agree to commonly appoint an agreed arbitrator.

5.4 What are the requirements (if any) as to arbitratorindependence, neutrality and/or impartiality and fordisclosure of potential conflicts of interest for arbitratorsimposed by law or issued by arbitration institutions withinMexico?

Arbitrators are required to be “independent and impartial”.

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Furthermore, arbitrators are strongly encouraged to disclose any

circumstances that may create a presumption of bias and

impartiality, and which might be reasons for the arbitrator to be

disqualified. It is also common to request confirmation that

arbitrators are available in order to ensure speedier arbitration

proceedings.

The International Bar Association issued Guidelines on Conflicts ofInterest in International Arbitration in 2004. These guidelines,

which act as recommendations only, set out a list of factors that

could affect the impartiality and independence of arbitrators in

specific circumstances, their seriousness and whether they could be

waived by the parties.

6 Procedural Rules

6.1 Are there laws or rules governing the procedure ofarbitration in Mexico? If so, do those laws or rules applyto all arbitral proceedings sited in Mexico?

Yes. The Mexican Commercial Arbitration Act contains both

mandatory and default provisions for the arbitration procedure.

These provisions apply to arbitral proceedings that are factually and

legally sited in Mexico – that is, a proceeding could be situated

outside of Mexico, but legally still be covered by the law. Thus,

following widespread arbitration practices, no requirement exists

by which all proceedings have to be held physically sited in Mexico

but this issue has to be consented by the parties and the arbitration

tribunal. Having certain hearings or activities abroad would not

mean a change to the seat of arbitration.

6.2 In arbitration proceedings conducted in Mexico, are thereany particular procedural steps that are required by law?

While there are no definitive steps that are required by law, general

principles still apply – such as making sure that due process

requirements are heeded and that parties are treated equally. This

implies that the parties had a fair chance to present their case and to

appoint an arbitrator.

6.3 Are there any rules that govern the conduct of anarbitration hearing?

No rules exist other than respecting general principles of arbitration.

This is, full respect to the agreement of the parties or the fair chance

to present their case. With respect to rules that govern the conduct of

an arbitration hearing, the principles that apply are that parties be

treated fairly, and that they are given the full opportunity to present

their case before the tribunal. Otherwise, tribunals have substantive

say over how the hearing is conducted. In practice, the arbitration

tribunal gives a broad scope to the parties to express their views as to

how the arbitration proceedings will be conducted.

6.4 What powers and duties does the national law of Mexicoimpose upon arbitrators?

Among other powers, the tribunal may assess the need,

admissibility, and weight of any evidence that is presented, as well

as order the production of documents and witnesses. If the

tribunal’s orders are not heeded, the tribunal may make whichever

inferences it feels are prudent given the circumstances and rules. If

the inference is adverse, it is not clear whether the parties’ express

consent will be necessary. (See also the answer to question 6.3.)

6.5 Are there rules restricting the appearance of lawyers fromother jurisdictions in legal matters in Mexico and, if so, isit clear that such restrictions do not apply to arbitrationproceedings sited in Mexico?

There is no such restriction for foreign lawyers to appear in

arbitration proceedings. It is more common to have foreign counsel

appearing in arbitration proceedings whose seat of arbitration is

Mexico on behalf of transnational companies. If Mexican

substantive law is applicable (and due to the possible application of

mandatory rules of the seat of arbitration), it is also common to have

Mexican co-counsel or assisting foreign counsel. This is also the

case whenever the arbitration proceedings are primarily in a foreign

language (e.g. English) different from Spanish.

6.6 To what extent are there laws or rules in Mexico providingfor arbitrator immunity?

An arbitrator’s immunity is a subject that is not set forth under the

Commercial Code; it is a product of the arbitration rules subject to

administration (i.e. the ICC).

6.7 Do the national courts have jurisdiction to deal withprocedural issues arising during an arbitration?

Other than a few limited issues that the court is specifically

designated to deal with (i.e., interim measures), the court must have

a hands-off approach. Courts have an assistance and control

approach in those specific items set forth under the Commerce

Code (e.g., appointing and removing arbitrators, referring the

parties to arbitrate, assisting in the taking of evidence, granting

provisional measures, setting aside and recognising and enforcing

awards).

7 Preliminary Relief and Interim Measures

7.1 Is an arbitrator in Mexico permitted to award preliminaryor interim relief? If so, what types of relief? Must anarbitrator seek the assistance of a court to do so?

The Mexican Arbitration Act allows arbitrators to issue any

measures that are “necessary with respect to the subject-matter of

the dispute”. Thus, arbitrators have rather unrestrictive freedom to

issue whichever issues it feels are necessary. The 2011 Amendment

confirms such possibility by allowing courts a wide discretion to

grant any measure it deems necessary to preserve the subject-matter

of the arbitration. Most times, the enforcement of such measures

will require judicial assistance since arbitrators do not have the

power on their own to enforce such measures. In the case that the

arbitral tribunal requests judicial assistance, it will be up to the court

to decide if the grounds for enforcing such measures are adequate.

A drawback is that due to the 2011 Amendment there is a specific

summary special commercial procedure to recognise and enforce an

award related to provisional measures. This procedure is the same

as to recognise and enforce final awards.

Likewise, another problem is that there: (i) are no ex parteprovisional measures; and (ii) is liability for petitioners and

arbitration tribunals with respect to damages caused by granting

provisional measures. Both features have been a source of criticism

in the Mexican arbitration landscape.


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7.2 Is a court entitled to grant preliminary or interim relief inproceedings subject to arbitration? In whatcircumstances? Can a party’s request to a court for reliefhave any effect on the jurisdiction of the arbitrationtribunal?

In the case that the arbitral tribunal requests judicial assistance and

the courts have to step in, courts are allowed to grant relief in order

to preserve the subject-matter of the arbitration procedures.

Seeking judicial assistance raises other problems that parties should

be aware of. If not stated appropriately, the request for assistance

could constitute a waiver of the right to arbitrate or could also

jeopardise the tribunal’s jurisdiction. Furthermore, following the

2011 Amendment, such measures may no longer be granted exparte. A summary adversarial procedure is required which is only

subject to constitutional challenge. This further complicates the

process and may be a drawback.

7.3 In practice, what is the approach of the national courts torequests for interim relief by parties to arbitrationagreements?

The 2011 Amendment provided for broad authority or full

discretion to the judiciary to grant provisional measures. This broad

discretion tried to override the argument that existed in the past that

courts could only grant the same measures available in litigation

(attachment of assets and arraignment).

The pitfall came with the fact that there are no longer ex partemeasures but rather it is necessary to exhaust a summary

commercial procedure that although not subject to appeal it is

subject to direct or one-tier amparo proceedings.

7.4 Under what circumstances will a national court of Mexicoissue an anti-suit injunction in aid of an arbitration?

The court now enjoys full discretion to grant any provisional

measure it deems adequate. See question 7.3. The Mexican

Commercial Code makes the petitioner and the arbitrator liable for

a provisional measure that causes damages to the recipient of the

measure.

7.5 Does the national law allow for the national court and/orarbitral tribunal to order security for costs?

Arbitration tribunals are able to order applicants to post security

bonds. For this order to be issued, it must be a case where the

applicant evidences the required degree of necessity and urgency

(high bar). Notwithstanding, these bonds or guarantees are related

to damages caused to the recipient of the measure rather than

security for costs of the arbitration proceedings.

8 Evidentiary Matters

8.1 What rules of evidence (if any) apply to arbitralproceedings in Mexico?

No specific rules exist. It is common to adhere to the guidelines set

out by the then 1999 or the new 2010 IBA Rules on Taking of

Evidence in International Commercial Arbitration (“Rules for

Evidence”). Likewise, in practice, parties usually agree to the rules

that are to be followed in regards to evidence. Given that no

specific rules exist in Mexico, and that usually discovery is very

limited in Mexican courts, it is uncertain whether the arbitral

tribunal may render an award when there was evidence not

provided by one of the parties. In this token, the most powerful tool

for arbitrators would be to make adverse inferences when parties

refuse to disclose information they were ordered to provide.

8.2 Are there limits on the scope of an arbitrator’s authority toorder the disclosure of documents and other disclosure(including third party disclosure)?

No legal duty to provide evidence exists. Hence, when parties do

disclose information, it might be motivated by the parties’ desire to

not have adverse inferences made with regards to their refusal to

produce documents.

It is a common clash to resolve the abuse that it could come with

undue requests for production of documents vis-a-vis the right to

present your case.

8.3 Under what circumstances, if any, is a court able tointervene in matters of disclosure/discovery?

The Mexican Arbitration Act provides for court assistance for court

assistance for evidentiary matters, and in general, Mexican courts have

a duty to aid arbitration proceedings. With regards to the general duty,

given that Mexico does not have a comprehensive discovery procedure

like other Anglo-Saxon jurisdictions, this duty will probably not

involve discovery measures. Furthermore, more limits arise since

statutes in Mexico prevent foreign discovery-related orders.

In this token, the most effective device that an arbitration tribunal

has is precisely to draw adverse inferences of fact against the non-

cooperating party.

8.4 What, if any, laws, regulations or professional rules applyto the production of written and/or oral witness testimony?For example, must witnesses be sworn in before thetribunal or is cross-examination allowed?

Although the arbitral tribunal is generally in charge of determining

what rules will apply, it is common practice for tribunals to apply

the 1999 or 2010 IBA Rules for Evidence. Parties can agree to have

these rules be the ones that apply to the conflict, or the tribunal can

informally apply them, by using the rules as a guide although “on

paper” they are not obligated to do so.

There are no limits on cross-examination, and it is of widespread

use. The Mexican Arbitration Act follows the common rule to give

the arbitration tribunal the widest criterion to conduct the arbitration

in the form and terms that it deems adequate, provided that it

respects due process rights.

8.5 What is the scope of the privilege rules under the law ofMexico? For example, do all communications with outsidecounsel and/or in-house counsel attract privilege? In whatcircumstances is privilege deemed to have been waived?

Mexico does not regulate the attorney-client privilege information

as other countries do. Mexico follows a general rule of

confidentiality. Therefore, no specific protections exist for

information that might be deemed confidential outside of the

protections that might be provided by an agreement amongst the

parties to keep such information confidential. Another related

consideration is that because in Mexico there is no substantive

discovery process, third parties would, regardless, have a rather

difficult time accessing any such documents.

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9 Making an Award

9.1 What, if any, are the legal requirements of an arbitralaward? For example, is there any requirement under thelaw of Mexico that the Award contain reasons or that thearbitrators sign every page?

For the award to be valid, certain requirements must be met: 1) it

must be in writing; 2) it must be signed by all of the arbitrators or

the majority where necessary (if signed by the majority the reasons

for this must be included in the award); 3) the award must include

the reasoning that led it to reach its conclusions unless the parties

consented to the award or the tribunal was authorised to act in good

faith; and 4) it must include the date and place where the award was

issued.

There is no statutory mandate that every page of the award be

executed. Such challenges usually arise whenever a party seeks to

nullify or deny recognition and enforcement of an award or use it as

dilatory tactic to contest authenticity of the award.

10 Challenge of an Award

10.1 On what bases, if any, are parties entitled to challenge anarbitral award made in Mexico?

Arbitration awards are final and cannot be appealed. Mexico

followed the 1985 UNCITRAL Model Law and so recognises the

“setting aside procedure” as the only recourse to actively challenge

the award. The other option is to refuse the recognition and

enforcement of the award from the passive standpoint. Both

grounds for setting aside or refusing to recognise and enforce the

award are basically the same. These grounds resemble those

provided under Section V of the 1958 New York Convention which

also were reproduced at the 1985 UNCITRAL Model Law. The

relevant provisions provide that certain grounds can only be raised

by the parties (i.e. departure of the arbitration clause, lack of

opportunity to appoint an arbitrator, etc.), while arbitrability and

public policy can also be raised ex officio by the court.

The 2011 Amendment provides for a summary special commercial

procedure that ends with a non-appealable judgment.

Notwithstanding, this judgment is subject to a direct amparo or

constitutional proceedings to be heard by a Collegiate Circuit court.

10.2 Can parties agree to exclude any basis of challengeagainst an arbitral award that would otherwise apply as amatter of law?

Although the answer here is not certain, it is very likely that a court

would not allow parties to waive the court’s authority to set-aside

an award based on public policy interests.

Since the setting aside proceedings are the “only recourse” against

a commercial award, it will be difficult to convince a court that such

waiver is valid. This is specially so when the grounds to set aside

or refuse to recognise and enforce an award are limitative and do

not allow a review on the merits of the award.

10.3 Can parties agree to expand the scope of appeal of anarbitral award beyond the grounds available in relevantnational laws?

Notwithstanding the fact that parties could tailor their contract to

expand the scope of the appeal, or the judgment stage of the

procedure, it is likely that the court could take a more liberal view

since such agreement seeks to expand the rights of the parties rather

than restricting them.

10.4 What is the procedure for appealing an arbitral award inMexico?

Arbitral awards may not be appealed, although they will be subject

to constitutional challenges (direct amparo) that will be heard by a

federal collegiate circuit court. This challenge is devised to

examine possible violations of fundamental human rights.

11 Enforcement of an Award

11.1 Has Mexico signed and/or ratified the New YorkConvention on the Recognition and Enforcement ofForeign Arbitral Awards? Has it entered anyreservations? What is the relevant national legislation?

Mexico is party to the 1958 NY Convention since 1971 and has no

reservations as to the commerciality of the dispute which ended

with the award or reciprocity of the country where the arbitration

award was rendered. This fact re-enforces the pro-enforcement bias

of our country. As in Mexico treaties are self-executing, there was

no need for additional legislation to be passed for the convention to

take effect. In general, with the exception of matters dealing with

public policy, or other issues mentioned previously, awards are to

be enforced by national courts. The relevant national legislation for

commercial arbitration is the Mexican Commercial Arbitration Act

found in the Federal Commerce Code, articles 1415 to 1480.

11.2 Has Mexico signed and/or ratified any regionalConventions concerning the recognition and enforcementof arbitral awards?

Mexico is also party to the 1975 Panama Convention and other

bilateral treaties in arbitration such as the one executed with Spain

in 1992.

11.3 What is the approach of the national courts in Mexicotowards the recognition and enforcement of arbitrationawards in practice? What steps are parties required totake?

Arbitration awards have been for the most part enforceable in Mexican

courts, and now their enforcement will be facilitated even more by the

2011 amendment to the Mexican Arbitration Act. In determining the

enforcement or non-enforcement of the award, the court will not be

able to rule on the merits of the award. Courts have favoured this

approach and most federal precedents have been related to matters of

procedure (before the 2011 Amendment) rather than substance.

In general, awards are presumed enforceable granted all the

necessary requirements are met. However, if the party opposing the

award is able to meet its burden of proof in demonstrating why it

should not be enforced, then the court will rule accordingly.

The party seeking enforcement will have to bring the original (or

certified) copies of the arbitration agreement and the award. The

award itself must be apostilled or legalised, and if not in Spanish,

must be translated by an official source. Then the award must be

brought before a competent judge for him/her to recognise it and

consequently enforce it.


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The 2011 Amendment modified the procedure to recognise and

enforce awards. This procedure is now a special summary

commercial procedure that basically commences with a complaint

where the arbitration agreement and the award have to be filed.

Competent courts are federal or local courts of the place of arbitration,

unless seeking enforcement of a foreign commercial award. In this

case, the competent court will be the local or federal court of the

domicile of the defendant or, otherwise, the place where its assets are

located. The respondent will have a 15 business-day term to respond,

object documents, counterclaim and offer evidence, and a short

evidentiary period of time is allowed. The procedure ends with

closing arguments and judgment; which judgment cannot be subject to

statutory appeal and will only be subject to a direct amparo proceeding

to be heard by federal or collegiate circuit court. This procedure is

available whenever there is a possible violation of fundamental human

rights, such as lack of legal certainty or due process.

11.4 What is the effect of an arbitration award in terms of resjudicata in Mexico? Does the fact that certain issueshave been finally determined by an arbitral tribunalpreclude those issues from being re-heard in a nationalcourt and, if so, in what circumstances?

In Mexico, arbitration awards have res judicata effect, provided that

they were not set aside or denied recognition and enforcement. It

seems that declaratory awards would have to be subject to

recognition to ensure their validity, unless no set-aside proceedings

have started in Mexico.

11.5 What is the standard for refusing enforcement of anarbitral award on the grounds of public policy?

This concept is still under construction. Courts have not

determined yet whether it will be national or international public

policy. Furthermore, it is still undetermined whether it will be

national or international arbitration public policy. Public policy is

normally the “catch-all” provision to challenge an arbitration award

or refuse its recognition and enforcement.

12 Confidentiality

12.1 Are arbitral proceedings sited in Mexico confidential? Inwhat circumstances, if any, are proceedings not protectedby confidentiality? What, if any, law governsconfidentiality?

Yes, arbitral proceedings are confidential. Third parties, unless the

parties and the tribunal expressly grant permission, do not have access

to proceedings. However, if the proceedings reach the setting aside or

enforcement stage, a judgment will have to be issued by a court. This

judgment will not be confidential unless the parties submit a special

request for the preservation of its confidentiality.

However, even if such a request exists and if the information is kept

confidential, if legal duty or a court order requires the disclosure of

the information, this will trump the interest of the parties in keeping

the information confidential.

12.2 Can information disclosed in arbitral proceedings bereferred to and/or relied on in subsequent proceedings?

Absent clear existing protections concerning the issues’ confidentiality,

other judicial and arbitral bodies that have access to the ruling will be

able to refer to and rely on subsequent proceedings.

13 Remedies / Interests / Costs

13.1 Are there limits on the types of remedies (includingdamages) that are available in arbitration (e.g., punitivedamages)?

Unless the parties have agreed otherwise, no specific limits exist on

the kind of remedies available. Punitive damages pose an

interesting question on Mexican law since Mexican civil law relies

on the golden rule of “immediate and direct damages” which,

therefore, does not allow punitive damages. Notwithstanding, to

what extent it violates public policy when those damages are

awarded in a foreign seat of arbitration while applying foreign law

and to be enforced in Mexico poses an interesting question.

Final remedies principally depend on the breach in question, as well

as the remedies that were requested.

Thus, staying in line with Mexico’s legal practice, the damages that

would be provided would likely only be direct and immediate

damages, lost profits, orders to refrain from certain activities, and

orders to return assets. Thus, tribunals may impart declaratory

awards, as well as decide on the costs and interests to be awarded.

13.2 What, if any, interest is available, and how is the rate ofinterest determined?

Parties have the freedom to determine any interest rates that may

apply in their case. If the parties for whatever reason do not

establish these rates, the following may apply. In the case of a civil

matter, the Federal Civil Code provides for an annual rate of nine

percent. If, on the other hand, it is a commercial matter, then a six

percent rate shall apply, as provided in the Federal Commercial

Code.

13.3 Are parties entitled to recover fees and/or costs and, if so,on what basis? What is the general practice with regardto shifting fees and costs between the parties?

As with other arbitration matters, here, it is also highly dependent on

how the parties and arbitrators wish to conduct the arbitration.

Although the arbitrators have wide latitude as to the particulars of the

process, in practice it is common for the arbitrators to divide costs

equally among all parties to the arbitration (exceptions exist for cases

having extraordinary circumstances that justify such a decision).

In calculating costs, arbitrators are likely to take the following into

consideration: i) amount in dispute; ii) case complexity; iii) time

devoted to the case; and iv) any other relevant circumstances that may

contribute to determining the reasonableness of the cost allocation.

13.4 Is an award subject to tax? If so, in what circumstancesand on what basis?

Awards are not taxed per se.

13.5 Are there any restrictions on third parties, includinglawyers, funding claims under the law of Mexico? Arecontingency fees legal under the law of Mexico? Arethere any “professional” funders active in the market,either for litigation or arbitration?

There are no such restrictions, although it is not customary to enter

into contingency arrangements alone but rather certain fee

combinations.

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14 Investor State Arbitrations

14.1 Has Mexico signed and ratified the WashingtonConvention on the Settlement of Investment DisputesBetween States and Nationals of Other States (1965)(otherwise known as “ICSID”)?

As of 2012, Mexico is not a Member State.

14.2 How many Bilateral Investment Treaties (BITs) or othermulti-party investment treaties (such as the EnergyCharter Treaty) is Mexico party to?

Mexico has 24 Bilateral Investment Treaties.

Mexico is not a party to the Energy Charter Treaty.

Likewise, Chapter 11 of NAFTA (North American Free Trade

Agreement effective in Mexico, US and Canada since 1994) has

produced important cases on State-Investor arbitration cases.

14.3 Does Mexico have any noteworthy language that it usesin its investment treaties (for example in relation to “mostfavoured nation” or exhaustion of local remediesprovisions)? If so, what is the intended significance ofthat language?

Mexico uses the fair and equitable treatment principle. That is:

1. The minimum standard. This requires that Mexico must

provide foreign investors and investment with fair and

equitable treatment in accordance with international

standards, including full protection.

2. The national standard. This implies that there must not be

discrimination based on nationality. Thus, foreign investors

must enjoy a treatment no less favourable than that applied to

Mexican investors in similar circumstances.

3. The most-favoured-nation standard. This implies that

Mexico must grant at least the same treatment to the investor

that has been provided to other investors in similar

circumstances.

4. Prohibition of performance requirements. Mexico may not

condition the receipt or continued receipt of an advantage or

incentive on the meeting of any requirements.

5. Free transfer of currency. Foreign investors may freely

transfer, without delay and in hard currency, profits,

dividends, and any type of cash stemming from or involving

their investment.

14.4 What is the approach of the national courts in Mexicotowards the defence of state immunity regardingjurisdiction and execution?

Mexico does not recognise the state immunity principle as some

Anglo-Saxon countries.

15 General

15.1 Are there noteworthy trends in or current issues affectingthe use of arbitration in Mexico (such as pending orproposed legislation)? Are there any trends regarding thetype of disputes commonly being referred to arbitration?

Probably, the most noteworthy trend was the 2011 Amendment of

the Commercial Arbitration Act. This made the arbitration

procedure, as well as its enforcement, more efficient and clear cut.

Although the Inter American Convention on Commercial

Arbitration (The Panama Convention) is more recent than the NY

Convention, it is not frequently used in Mexico. The Panama

Convention is unknown for many people. This situation may bring

some difficulties in their application.

We believe it is necessary that Mexico becomes part of the

International Centre for Settlement of Investment Disputes

(ICSID). This concern has been brought into the attention of the

Mexican Government.

15.2 What, if any, recent steps have institutions in Mexicotaken to address current issues in arbitration (such astime and costs)?

One of the biggest issues that arbitration institutions face in Mexico

is that arbitration costs are high and make arbitration expensive. In

Mexico, we have three important arbitration institutions: (i) ICC;

(ii) Centro de Arbitraje Mexico (CAM); and (iii) Cámara deComercio de Mexico (CANACO). The last two are Mexican

Institutions. CAM has modified their internal rules aligned with the

ICC recent amendments. Likewise, CANACO has created a “low-

cost” arbitration proceeding. This proceeding is very fast and less

expensive.


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MexicoBarrera, Siqueiros y Torres Landa, S.C.

Omar Guerrero RodríguezBarrera, Siqueiros y Torres Landa, S.C.Paseo de los Tamarindos 150-PBBosques de las LomasMéxico D.F. 05120Mexico

Tel: +52 55 5091 0162Fax: +52 55 5091 0123Email: [email protected]: www.bstl.com.mx

EducationMr. Guerrero received his law degree from the UniversidadIberoamericana, and obtained an LLM at the London School ofEconomics and Political Science, both with honours.He completed postgraduate degrees on “Legal Framework forInternational Business in Mexico” and Commercial Law at theEscuela Libre de Derecho. He also secured two additionaldiplomas in arbitration and also in Constitutional lawsuits(amparos) at the Barra Mexicana Colegio de Abogados.Principal Areas of PracticeHe has excelled in areas of Litigation (mainly Commercial,Reorganisation and Bankruptcy and Administrative); CommercialArbitration and Economic Competition- Antitrust Law. Professional BackgroundMr. Guerrero has been a partner of Barrera, Siqueiros y TorresLanda, S.C. since 2000.RecognitionsMr. Guerrero has been recognised among different publicationsfor his professional development throughout his career, includingChamber’s, Who’s Who, Best Lawyers and plc. Mr. Guerrero has written more than 30 articles of different themessuch as Arbitration, Economic Competition- Antitrust, andCommercial Litigation, among others. He is the current head of the antitrust section of the Mexican BarAssociation.

Mariana Fernández Salazar Barrera, Siqueiros y Torres Landa, S.C.Paseo de los Tamarindos 150-PBBosques de las LomasMéxico D.F. 05120Mexico

Tel: +52 55 5091 0153Fax: +52 55 5091 0123Email: [email protected]: www.bstl.com.mx

EducationMrs. Fernández received her law degree from the UniversidadIberoamericana (2000–2005), and her Masters Degree (“LLM”)from the University of California, Berkeley (2007–2008). Principal Areas of PracticeCivil, Commercial, and Family Litigation, Amparo, Arbitration, andbankruptcy proceedings.Professional BackgroundMrs. Fernández joined Barrera, Siqueiros y Torres Landa, S.C. in2002, although in 2008 she worked for Miller, Candfield, Paddock& Stone, P.L.C, Detroit, MI, for several months in the CommercialLitigation department.RecognitionsShe graduated with “Honours” from the UniversidadIberoamericana due to her Academic Excellency. She wasgranted the Fulbright Scholarship to study the LLM at theUniversity of California, Berkeley. It was granted by the García-Robles foundation and the Department of State of the UnitedStates of America (July 2007 - May 2008).

Barrera, Siqueiros y Torres Landa, S.C. (BSTL) is a leading law firm in Mexico with more than 60 years of experience in theMexican market place. It offers personalised, preventive, and strategic legal solutions to their local and international clients,operating in industry, trade and the public sector.

Our expertise in the ever-changing legal, commercial, and corporate environment makes us the most reliable option in terms ofadvice on corporate, tax, labour, competition, litigation and ADR’s and environmental matters, among others, practicing in strictadherence to ethical standards and committed to achieving excellence in serving our clients.

To optimise the results of our work, we offer comprehensive consulting to every client and are able to bring togethermultidisciplinary teams for specific transactions. Our most important asset is a full staff of associates and partners who havestudied abroad or have had experiences in internships in other countries. Likewise, most of our partners and associates lecturein the most recognised universities in Mexico.

Our team comprises over seventy highly professional and academically accomplished attorneys, both in our Mexico City andMonterrey offices, who are ready to serve. We are also fond of our social responsibility policy.

BSTL’s greatest satisfaction is providing excellent services and sharing the success or our clients.

Mex

ico

www.iclg.co.uk

59 Tanner Street, London SE1 3PL, United KingdomTel: +44 20 7367 0720 / Fax: +44 20 7407 5255

Email: [email protected]

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The International ComparativeLegal Guide to International Arbitration2012 Edition.

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