Litigation 2022 – Civil law
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1 Litigation – Preliminaries
1.1 What type of legal system does your jurisdiction have? Are there rules that govern civil procedure in your jurisdiction?
The Mexican legal system is governed by civil law. The Mexican Constitution establishes that matters not expressly assigned to the federal government are within the jurisdiction of each Mexican state, including civil matters. Therefore, each Mexican state has its own local Civil Procedure Code.
However, there is also a Federal Code of Civil Procedure, which may be applicable throughout the country depending on the case. This code can also be applied as a supplement whenever local codes do not regulate a specific situation.
1.2 How is the civil justice system in your jurisdiction structured? What are the different levels of appeal and are there specialized courts?
The civil justice system in Mexico mainly comprises three levels: the courts of first instance; Courts of Appeal ; and federal collegiate courts. Trial and appellate courts may be federal or local, depending on the plaintiff’s decision or if the dispute arises out of an agreement in which the parties have agreed to submit it to the jurisdiction of a specific court. However, the three-tier structure remains the same.
Local civil courts or federal district courts are the lowest Mexican courts to conduct civil proceedings. The decisions of these courts can be challenged before the courts of appeal.
Courts of Appeal
The courts of appeal are responsible for ruling on the appeals lodged by the parties against the decision of the courts of first instance. The parties are not allowed to produce other evidence unless it is related to a possible cause for dismissal of the main action. The decisions of the Courts of Appeal can be challenged by the parties through a so-called “Amparo” trial before a Collegiate Court.
Collegiate Federal Courts
The Collegiate Courts are always federal, in that they oversee the resolution of appeals and the remedies provided by federal laws, such as the “Amparo” law. As before the courts of appeal, the parties are not allowed to produce other evidence unless it is related to a possible cause for the dismissal of the main action. Cases are heard and judged by a panel of three magistrates, whose decision is final.
The Supreme Court
The Supreme Court is the exceptional Court of Appeal of last resort in Mexico. It is exceptional because, for this Court to hear litigation, one of the following must exist: (i) the Supreme Court decides to hear an appeal from the Federal Collegiate Courts because of the general public importance of the case at issue, or whether the interests of justice require the Court to hear the case; or (ii) the unconstitutionality of a regulation has been brought before the courts of appeal.
1.3 What are the main stages of civil proceedings in your jurisdiction? What is their underlying timeline (please include a brief description of any expedited trial proceedings)?
The main stages of a civil proceeding in Mexico may vary slightly depending on the type of proceeding initiated. However, the main steps are normally as follows:
I. Initial Brief and Response
Proper civil litigation begins with the filing of the lawsuit with the court, which may admit, dismiss, or seek clarification of the lawsuit. If the lawsuit is admitted, the court will serve the defendant, granting a statutory time limit to file the answer and any counterclaim. If the defendant files a counterclaim, the other party will be served to file its reply brief.
At this stage, the parties are required to provide all their documentary evidence, specifying which evidence is in their possession and which is not. The evidence they have must be presented with their brief. If not, the parties must explain why they do not have such evidence.
After responding to the original claim and counterclaim, if any, the judge will set a date for the preliminary hearing where the parties can discuss and reach an agreement. It is important to consider that this hearing is not contemplated in the Federal Code of Civil Procedure, but it is contemplated in some local codes. Therefore, this step will depend on the code under which the civil litigation is being prosecuted.
II. Proof period
After filing the response to the original claim or counterclaim, the judge will grant the parties a legal time limit to offer and present evidence. At this time, the parties may offer confessional, testimonial and/or expert evidence, in addition to exhibiting pending documentary evidence.
Once the evidence has been presented and presented, the judge will decide whether to admit it and schedule an evidentiary hearing during which all admitted evidence will be prepared and conducted, e.g. testimonies, confessions and expert opinions .
III. Final allegations
Once all the evidence has been filed and conducted, the judge will give the parties a legal time limit to file the brief of closing allegations, which are the parties’ last statements before the judge issues the resolution.
Once the allegations period is over and the parties have submitted their briefs, the judge will issue the resolution, which can be challenged in an appeals court. The resolution of such an appeal may also be challenged through a so-called “Amparo” lawsuit, which will be resolved by a federal collegiate court.
The duration of civil proceedings in Mexico depends on the complexity of the case and the volume of the elements that make up the dispute, for example the evidence presented by the parties. In addition, in Mexico, any provisional or incidental decision rendered by the judge can be appealed.
As a result, it can take one to three years to obtain resolution at the first stage of traditional civil litigation. However, given the fact that a first instance decision can be challenged before a Court of Appeal and before a Circuit Court as a last resort, the entire procedure can take a minimum of two and a half years, or even up to four to six years in normal cases. Very complex cases can take more than a decade.
1.4 What is the approach of the local court system in your jurisdiction to exclusive jurisdiction clauses?
In Mexico, it is very common in civil acts to agree that in the event of a dispute, the parties expressly waive any jurisdiction other than the Mexican courts, whether federal or state. If this is the case, the Mexican courts will have to apply the said clauses based on contractual freedom, unless a justified and reasoned reason is found not to do so.
1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there rules on cost budgeting?
The Mexican authorities are required to bear the costs of justice, since the Constitution establishes that justice is free for all.
However, each party is responsible for attorney and expert fees, as well as other litigation-related costs, such as documentation costs and expert fees and other due diligence. There are certain guidelines for courts to order payment of costs and attorneys’ fees, based on the percentage of the amount specifically claimed.
1.6 Are there special rules regarding litigation funding in your jurisdiction? Are contingency fee/contingent fee agreements allowed?
There are no rules regarding litigation funding, contingencies and contingency fee agreements. Any clause or obligation in this matter can be arranged and based on arrangements between a funder and the parties.
1.7 Are there any constraints on the attribution of a claim or cause of action in your jurisdiction? Is it allowed for a third party to a contentious procedure to finance this procedure?
Mexican regulations do not expressly establish constraints on the assignment of a claim. However, the federal and local codes that govern civil proceedings stipulate that only those who have an interest in the judicial authority declaring or establishing a right or pronouncing a condemnation, and those who have a contrary interest, can initiate or intervene in a legal proceeding.
Therefore, if an assignment of the cause of action is sought, it must be shown that the assignee has a legal interest in participating in the litigation. This becomes relevant if you take into account that surrogacy is allowed and regulated in Mexico.
Finally, Mexican law does not regulate any prohibition on third-party litigation funding.
1.8 Can a party obtain security/guarantee for their legal costs?
No, Mexican regulations do not provide for the possibility of obtaining a bond or guarantee for legal costs. However, within the framework of the trial or before its opening, the seizure of sufficient assets to guarantee the outcome of the trial may be ordered at the request of a party, and as a precaution, presenting a guarantee to answer for any damages that could be caused to the person against whom the precautionary measure is taken.
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Originally posted by ICLG
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.