MEXICO: An introduction to Dispute Resolution: Civil & Commercial Litigation

Challenges in Mexican Litigation: A Reflection on the Different Amendments to the Justice System           

Introduction

Litigation in Mexico is evolving. This change is caused by multiple factors, most notably (i) the controversial amendment to the election of both federal and state judges and (ii) the recent coming into effect of new procedural laws on commerce, civil and family matters. The challenges these changes pose to everyone involved are not minor. Litigators will need to adapt themselves to this double change; which entails a new paradigm, even without the certainty of making justice more efficient. 

The judicial reform is probably the most significant and drastic the judicial branch has experienced throughout its history. In recent years, the confrontation between the judicial class and the other two branches has been constant. It is worth remembering that jurisdictional rulings have halted state policies in connection with energy, security, national guard, electoral changes and austerity, among others. Anger has reached such an extreme that criticism has been public and open.

In addition to the complications of the aforementioned judicial reform, the National Code of Civil and Family Procedures is about to come into force. The purpose of this set of rules is to make uniform the procedural rules governing all judicial disputes that arise in the federal and local or state jurisdictions and to give preference to the oral procedures that began some years ago in other matters (criminal, labour, commerce).

This article will describe some of the challenges in connection with the new Code, the oral procedures and the democratic election of judges, to subsequently identify one of the problems in accessing justice that we denominate the “judicial labyrinth”, which has not been taken care of and which could be the root of judicial inefficiency in Mexico.

Oral procedures and the new code 

On 15 September 2017, the constitutional reform “Executive order, amending and supplementing Articles 16, 17 and 73 of the Political Constitution of the United Mexican States, on Everyday Justice” entitled the Federal Congress to issue a new single piece of legislation on civil and family procedural matters. The aim is to standardise procedures throughout the country to avoid disparities in judicial criteria, favouring legal security.

Inspired by the spirit of this constitutional reform, working sessions were held to prepare a draft of the National Code of Civil and Family Procedures which seeks to meet the needs of everyday and open justice, meeting the highest international standards in terms of:

• access to a simple, fast and effective remedy;
• faster and more expeditious procedures;
• respect for human rights; and
• consolidating access to oral justice in our country, homologating the principles of orality, immediacy, concentration, publicity, equality and contradiction.

The Mexican experience in respect of oral proceedings has been favourable, according to statistics from the Superior Court of Justice of Mexico City (the largest in the country) the number of civil and commercial oral trials has steadily increased since the reforms came fully into force in 2020.

As demonstrated by statistics, oral proceedings in Mexico have become popular in civil and commercial litigation, generating a new practice that has helped lawyers and judges to approach litigation with a fresher vision far from the written rigour that prevailed in the 20th century. A vision that seeks to make trials become more transparent, agile and with the judge’s greater involvement in the process. However, most legal education in Mexico continues to be focused on a written system that prevents the development of professionals who can strengthen oral procedures and make this type of litigation more efficient.

Democratic election of judges

As pointed out in the preceding sentences, there has been heated criticism from the ruling political class directed towards judges, not only for their constant interference in public policy, but also for an apparent disconnection from citizens’ interests; hence the executive branch's proposal of a constitutional reform that intends to resize the system.

Essentially, this reform proposes generating a new model based on a uniform system for selecting judges, through federal elections on electoral days to be held during 2025 and 2027. It also proposes to create a Disciplinary Tribunal to oversee the actions of judicial officials and a new administrative body. With this election, the Supreme Court will be composed of nine members, instead of the current eleven.

The proposed dynamic would force the renewal of all current profiles of judges, with the intention of generating a new scheme of transparency, control and accountability to citizens. However, it opens a front for economic, political and even criminal interests to intervene in the selection processes that had traditionally focused on professionalisation and respect for the judicial career.

One of the strongest criticisms of the plan has also focused on the monitoring of judges’ performance, because although a disciplinary regime for judicial duty is essential, the proposed reform fails to ensure independence when issuing resolutions. In addition:

• it allows political authorities to intervene in ongoing trials;
• no clear model of unlawful conduct exists;
• there is no due process for the person being investigated (including no way to appeal decisions); and
• it fails to provide constitutional elements in order for judicial officials to be evaluated or investigated under objective parameters.

Judicial labyrinth

Mexican justice is a labyrinth that requires knowledge of the courts according to their jurisdiction (local or federal) and is based on the distinction between ordinary justice and constitutional justice. The competence rule between local and federal jurisdiction provides that everything that is not expressly reserved for federal jurisdiction shall be decided by the states, therefore local courts will hear cases not heard by the federal ones. In ordinary justice there are courts that firstly decide all matters related to civil, commercial, labour, criminal, administrative, tax and regulatory disputes. On the other hand, constitutional justice has a subsidiary role to ordinary decisions, in very specific cases delimited by law and intended only to analyse issues related to human rights violations, through amparo lawsuits.

Amparo lawsuits have become an essential mechanism within Mexican litigation to review, from another perspective, what has been decided in ordinary and local instances, since the results in these instances are not always as expected, partly because of the political control exercised in these jurisdictions. Due to the reliance on federal courts, justice depends on amparo lawsuits, with the complications implied when allowing a higher instance to meddle.

Conclusion

Throughout the last 15 years, various reforms have been attempted to solve problems of access to efficient justice in Mexico; however, none of them has succeeded. This, added to the political tension between powers (particularly the executive and judicial branches), has caused a reform to the judicial branch structures, which compels lawyers, judicial officials and those seeking justice to adapt once again, without having yet assimilated the preceding reforms.

The existence of several jurisdictions (local, federal, ordinary and constitutional) that become a judicial labyrinth, in the majority of cases delays adequate, expeditious and complete administration of justice; however, they have not been the subject of attention or study. Moreover, the expense that the existing bureaucracy represents for the Mexican State, both at the federal and local levels, has been forgotten; contrary to an austerity policy, but above all because of the tortuous path it represents for those who resort to the courts to make or defend a claim.

Litigation in Mexico face a critical juncture. Many reforms, little effectiveness in achieving an actual and profound change for the benefit of those seeking justice, who perceive that true justice cannot be accessed. A belief in impunity has taken root in citizens’ consciousness as an insurmountable constant, which has serious effects on the social fabric and consequently on the country’s governability.