Litigation 2022 – Civil Law

1 Litigation – Preliminaries

1.1 What type of legal system does your jurisdiction have?
Are there any rules that govern civil procedure in your
jurisdiction?

The Mexico legal system is governed by civil law. The Mexican
Constitution establishes that matters not expressly designated to
the Federal Government shall fall under the competence of each
Mexican state, including civil matters. As consequence, each
Mexican state has its own local Code of Civil Procedure.

However, there is also a Federal Code of Civil Procedures, which
may be applicable throughout the country depending on the case.
Such Code may also be applied on a supplementary basis whenever the
local codes do not regulate a specific situation.

1.2 How is the civil court system in your jurisdiction
structured? What are the various levels of appeal and are there any
specialist courts?

The Civil Court system in Mexico mainly consists of three
levels: Courts of First Instance; Courts of Appeal; and Collegiate
Federal Courts. The Courts of First Instance and Appeal may be
Federal or local, depending on the decision of the plaintiff or if
the dispute arises from an agreement in which the parties have
agreed to submit it to the jurisdiction of a specific court.
However, the three-level structure remains the same.

Courts of First Instance

The local Civil Courts or Federal District Courts are the lowest
Mexican Courts to conduct civil proceedings. The decisions of these
Courts can be challenged at the Courts of Appeal.

Courts of Appeal

Courts of Appeal are in charge of ruling on the appeals filed by
the parties against the decision of the Courts of First Instance.
The parties are not allowed to exhibit further evidence unless it
is related with a possible cause for rejection of the main action.
The decisions of the Appeal Courts can be challenged by the parties
through a so-called “Amparo” lawsuit before a
Collegiate Court.

Collegiate Federal Courts

Collegiate Courts are always Federal, due to the fact that they
oversee the resolution of appeals and means of challenge provided
for in Federal laws, such as the “Amparo” law. Just as
with the Courts of Appeal, the parties are not allowed to exhibit
further evidence unless it is related to a possible cause for
rejection of the main action. The cases are heard and ruled by a
panel of three Magistrates, whose decision is final.

The Supreme Court

The Supreme Court is the exceptional Court of final appeal in
Mexico. It is exceptional because, for this Court to hear a
dispute, one of the following situations must exist: (i) the
Supreme Court determines to hear an appeal from the Collegiate
Federal Courts based on the general public importance of the matter
at hand, or on whether the interests of justice require the Court
to hear the matter; or (ii) the unconstitutionality of a regulation
was brought before the Courts of Appeal.

1.3 What are the main stages in civil proceedings in your
jurisdiction? What is their underlying timeframe (please include a
brief description of any expedited trial procedures)?

The main stages of civil proceedings in Mexico may change
slightly depending on the type of proceedings being brought.
However, the main stages are normally as follows:

I. Initial brief and response

A regular civil proceeding begins with the filing of the lawsuit
with the Court, which may admit, dismiss, or request clarification
of the lawsuit. If the lawsuit is admitted, the Court will serve
the defendant, granting a statutory term to file the response and
possible counterclaim. If the defendant files a counterclaim, the
other party will be served to file its brief of response.

At this stage, the parties are obliged to offer all their
documentary evidence, detailing which evidence is in their
possession and which is not. The evidence they do have must be
exhibited together with their brief. Otherwise, the parties must
provide reasons as to why they do not have such evidence.

After the initial claim and counterclaim, if any, are responded
to, the Judge will set the date of the preliminary hearing in which
the parties may discuss and reach an agreement. It is important to
consider that this hearing is not contemplated in the Federal Code
of Civil Procedures, but it is contemplated in some local codes.
Therefore, this stage will depend on the code pursuant to which the
civil dispute is being prosecuted.

II. Evidence period

After the response to the initial claim or counterclaim is
filed, the Judge will grant the parties a statutory term to offer
and exhibit evidence. At this moment, the parties may offer
confessional, testimonial and/or expert evidence, besides
exhibiting the pending documentary evidence.

Once the evidence has been offered and exhibited, the Judge will
rule on whether to admit it and schedule an evidence hearing in
which all admitted evidence will be prepared and conducted, e.g.
testimonials, confessionals, and experts’ opinions.

III. Final allegations

Once all the evidence has been filed and conducted, the Judge
will grant the parties a statutory term to file the brief of final
allegations, which are the parties’ last declarations before
the Judge issues the resolution.

IV. Decision

Once the period of allegations has concluded and the parties
have submitted their briefs, the Judge will issue the resolution,
which may be challenged at a Court of Appeal. The resolution of
such appeal can also be challenged through a so-called
“Amparo” lawsuit, which will be resolved by a
Collegiate Federal Court.

The length of a civil proceeding in Mexico depends on the
complexity of the matter and the volume of material that composes
the dispute, e.g. the evidence offered by the parties.
Additionally, in Mexico any provisional or incidental decisions
issued by the Judge can be appealled.

Therefore, it can take from one to three years to obtain a
resolution at the first stage of a traditional civil procedure.
However, considering the fact that a first instance resolution can
be challenged at a Court of Appeal, and at a Circuit Court at the
last instance, the whole procedure may take a minimum of
two-anda-half years, or up to four to six years in normal cases.
Very complex cases may take more than a decade.

1.4 What is your jurisdiction’s local
judiciary’s approach to exclusive jurisdiction
clauses?

In Mexico, it is very common in civil acts to agree that, in
case of 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 enforce said clauses based on
the freedom of contract, unless a well-founded and motivated 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 any rules on costs
budgeting?

The Mexican authorities are obligated to deal with the costs of
the litigation, since the Constitution establishes that justice is
free for everyone.

However, every party is responsible for attorney and expert
fees, along with other costs relating to the litigation, such as
document expenses and the fees of the experts and another
diligence. There are some guidelines for Courts to order payment of
costs and attorney fees, based on the percentage of the amount
expressly claimed.

1.6 Are there any particular rules about funding litigation
in your jurisdiction? Are contingency fee/ conditional fee
arrangements permissible?

There are no rules regarding funding litigation, contingency and
conditional fee arrangements. Any clause or obligation in this
matter may be arranged and based on arrangements between a
financier and the parties.

1.7 Are there any constraints to assigning a claim or cause
of action in your jurisdiction? Is it permissible for a non-party
to litigation proceedings to finance those proceedings?

Mexican regulation does not expressly establish constraints
to assign a claim. However, both the Federal and local Codes
that regulate civil proceedings state that only those with an
interest in the judicial authority declaring or establishing a
right or imposing a condemnation, and those who have a contrary
interest, may initiate or intervene in a judicial proceeding.

Therefore, if an assignment of the cause of action is sought, it
must be demonstrated that the assignee has the legal interest to
participate in the dispute. This becomes relevant if we take into
account that surrogacy is permitted and regulated in Mexico.

Finally, Mexican law does not regulate any prohibition regarding
the financing of litigation by a non-party.

1.8 Can a party obtain security for/a guarantee over its
legal costs?

No, Mexican regulation does not provide the possibility of
obtaining security for or a guarantee over legal costs. However,
within the trial or prior to its commencement, the seizure of
sufficient assets to guarantee the outcome of the trial may be
ordered at the request of a party, and as a precautionary measure,
exhibiting a guarantee to respond to the possible damages that
could be caused to the person against whom the precautionary
measure is adopted.

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Originally published by ICLG

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.