Arbitration and Amparo By Carlos Mc Cadden Mexico-City
Amparo may be against • If arbitration involves a Mexican party or the place of arbitration is Mexico the parties need to be aware of the Amparo remedy since it is unwaivable.
Amparo (law) • In the Mexican legal system, as in other countries of the Spanish-speaking world, an Amparo remedy or action is an effective and inexpensive instrument for the protection of an individual's constitutional rights.
An Act performed by a court of law • An award may be subject to an Amparo suit only when a competent judge has granted recognition, enforcement or has set it aside.
No appeal • The Code of Commerce, in Articles 1460 and 1463, states that the decision granting annulment, recognition or enforcement of an award “shall be subject to no appeal”.
Jurisdiction • Nonetheless once the compliance of an award has been declared by a first instance Federal or state judge, it is considered a jurisdictional act.
Definition • Only then may the injured party resort to Federal courts in order to remedy the defects the decision may have from a constitutional point of view, this is called an Amparo suit.
In accordance to NYC • In Amparo suits Federal courts have the authority to analyze the award to determine its accordance with Articles 1457 and 1462, relative to the limited grounds for refusing setting-aside, recognition or enforcement of an arbitral award.
Due process • This in the case of an arbitral award means the protection of the essential formalities of procedure which give right to due process against the breach of the bill of rights.
Not the merits • The reasons indicated in Articles 1457 and 1462 of the Code of Commerce are strictly limited to the ones concerning due process (error in procedendo).
A “Second” chance • The difference is that this time around the essential formalities of procedure being examined in the Federal Court final judgment determines whether or not the Judgment which annulled, recognized or enforced an award violates the rights implicitly or explicitly protected by the Constitution of the United States of Mexico, particularly those uttered in Articles 14 and 16.
Not beyond • Utterly, Federal Courts acting as constitutional courts protecting basic guarantees cannot go beyond first instance Federal or state judges because the reasons to protect citizens and their basic guarantees in a due process that recognized, enforced or annulled awards are strictly limited in Articles 1457 and 1462 of the Code of Commerce; which in turn is in accordance to the New York Convention (1958).
Amparo process. • In the Mexican Judicial System there is a direct (one instance) and an indirect (two instances) Amparo suit. A one instance or Direct Amparo is conducted before a Collegiate Federal Circuit Court. A two instances or Indirect Amparo is conducted before a District Judges.
Jurisprudence • The Mexican Supreme Court decided between the two basic types of Amparo in favor of the two instances indirect procedure leaving this longer option as only venue to challenge a judicial sentence that sets aside, recognizes or enforces an award.
To conclude • Amparo used correctly in arbitration cases has a positive outcome because it shelters the right to due process and to the exact application of the law.