Kluwer Arbitration Blog

On February 14, 2024, the Sixteenth Collegiate Court in Civil Matters of Mexico City (the “Sixteenth Collegiate Court”) decided two related cases (Amparo en Revisión 402/2023 and Amparo en Revisión 461/2023, published on January 17, 2025 in the Mexican Official Gazette), addressing the availability of injunctive relief in the context of the recognition and enforcement of arbitral awards. These decisions represent an early judicial approach in Mexico with respect to post-award interim measures.

This post provides an overview of these decisions, a brief analysis, and concluding remarks on the issue.

 

What’s The Matter?—Enforcing Awards and Freezing Assets in Mexico

1. The ICDR Award

On November 23, 2020, an International Centre for Dispute Resolution (the “ICDR”) arbitral tribunal seated in Houston, Texas, comprising Luis O’Naghten, David Arias, and Lucía Ojeda (the “Tribunal”), rendered an arbitral award arising from a multi-party arbitration (the “ICDR Award”). The dispute involved a Telemetry, Tracking & Command (TT&C) Provision Agreement between SSL Digital and Quetzsat, SES Engineering Luxembourg, SES Engineering US, and others. The Tribunal ruled in favor of the Respondents, ordering SSL Digital to pay various amounts, including legal fees and costs. Subsequently, one of the parties¹⁾ It is not clear from the court public records who was the party seeking recognition and enforcement of the ICDR Award as the identity of the parties is redacted. (the “Applicant”) initiated proceedings to recognize and enforce the ICDR Award in Mexico City.

 

2. The Enforcement Proceedings in Mexican Courts

On March 27, 2023, the Applicant sought the recognition and enforcement of the ICDR Award (the “Enforcement Proceedings”) before the Sixteenth Civil Judge of Mexico City (the “Sixteenth Civil Judge”) and requested interim measures on two occasions.

 

   A. The First Application—Just A Little Push

On June 22, 2023, the Applicant sought injunctive relief to attach the Defendant’s assets in the Enforcement Proceedings (the “First Application”). However, on July 13, 2023, the Sixteenth Civil Judge dismissed the First Application (the “First Decision”), citing the following reasons:

• Infeasibility: The “general rules for interim measures” do not apply to the recognition and enforcement of arbitral awards.
• Scope of Interim Relief: The Mexican Arbitration Act (the “MAA”) limits interim measures to pre- or mid-arbitration stages.
• Unsuitability: Asset attachment is inappropriate for enforcing the ICDR Award.

 

The Applicant challenged the decision before the Twelfth District Judge, arguing the following:

• Misinterpretation of Article 1425 MAA: The Sixteenth Civil Judge wrongly restricted interim measures to pre- or mid-arbitration stages despite the wording of Article 1425 MAA (akin to Article 9 of the UNCITRAL Model Arbitration Law).
• Exclusion of Article 1177 MCC: The Sixteenth Civil Judge failed to apply Article 1177 of the Mexican Commercial Code (the “MCC”), which allows courts to grant interim measures in any commercial proceedings.
• Suitability: Asset attachment is necessary to ensure the collection and enforcement of the ICDR Award.

 

On September 20, 2023, the Twelfth District Judge in Civil Matters of Mexico City (the “Twelfth District Judge”) upheld the First Decision, reasoning the following:

• Infeasibility: The MAA does not allow for post-award interim measures in recognition and enforcement proceedings.
• Scope of Interim Relief: Interim measures under Chapter IX of the MAA are limited to pre- or mid-arbitration stages, ensuring legal certainty.
• Lex Specialis: The MAA, as the specialized legal framework, prevails over the general injunctive relief provisions in Article 1177 MCC.

 

   B. The Second Application—… A Little Push(-ier)

On July 12, 2023—before the First Decision was even rendered—the Applicant submitted a second request for injunctive relief in the Enforcement Proceedings (the “Second Application”).

On August 8, 2023, the Sixteenth Civil Judge dismissed the Second Application (the “Second Decision”) on the same grounds as the First Decision. The Applicant also challenged this ruling before the Twelfth District Judge, raising the same arguments as in the First Decision challenge.

On September 23, 2023, the Twelfth District Judge, once again, confirmed the Sixteenth Civil Judge’s ruling, maintaining the reasoning set forth in the First Decision.

Ultimately, the Applicant challenged both decisions rendered by the Twelfth District Judge before the Sixteenth Collegiate Court.

 

What Does the Sixteenth Collegiate Court Say?—Post-Award Interim Measures? Sure Thing!

On February 14, 2024, the Sixteenth Collegiate Court reversed the Twelfth District Judge’s decisions, holding that interim relief may be granted in recognition and enforcement proceedings. The Court found that:

• Absence of an Explicit Prohibition: Article 1425 MAA does not explicitly prohibit post-award interim measures.
• Ensuring Enforcement Effectiveness: Interim measures serve to safeguard the payment of the award during enforcement proceedings.
• Res Judicata Pending: The pending recognition of the award does not preclude the granting of interim measures.
• Teleological Interpretation: A purpose-driven interpretation of Article 1425 MAA supports interim measures to protect enforcement effectiveness.

 

Notably, the Sixteenth Collegiate Court rulings align with the MAA’s special framework and reflect a proper understanding of the judiciary’s discretion to grant interim measures in support of arbitration—whether before, during, or after the proceedings. These rulings are consistent with previous decisions endorsing the autonomous and special nature of the MAA and judicial discretion on interim relief in aid of arbitration. But more importantly, it provides a well-reasoned initial approach to post-award interim relief in recognition and enforcement proceedings by holding that in the absence of an explicit prohibition, the proper interpretation of Article 1425 MAA is that interim relief should be available, as its purpose is to safeguard the enforcement of arbitral awards.

While this interpretation reinforces arbitration as an effective dispute resolution mechanism in Mexico, its practical application may still face challenges, as it is not yet binding. Greater legal certainty could be achieved through binding precedents (“jurisprudencia”) or guidance from the Mexican Supreme Court. So far, the Sixteenth Collegiate Court has handled the issue seamlessly—hopefully, this will not change with the recent judicial reform (see here and here for further discussion on the recent judicial reform in Mexico). However, whether this interpretation will prevail in future cases remains to be seen.

 

What Loose Ends Are We Left With?—An Audacious Losing Party Seeking Interim Relief? And Some Other Questions

Despite the achievements of the Sixteenth Collegiate Court, a few issues remain unsettled, including:

• Whether the MAA should be amended to expressly address interim relief in the context of the recognition and enforcement of arbitral awards;
• Whether interim relief is available in Mexican courts after the award is rendered but before commencing recognition and enforcement proceedings under the current MAA framework; and
• Whether a losing party resisting recognition and enforcement can seek interim relief.

These concerns may apply to some extent to those jurisdictions that have adopted the UNCITRAL Model Arbitration Law.

 

1. Amending the MAA: A Redundant Proposal?

It is unsurprising that parties invoke the MCC instead of the MAA when seeking interim relief in the recognition and enforcement of an arbitral award, given that Article 1177 MCC includes such proceedings by definition. However, Mexican courts—such as the Sixteenth Collegiate Court—have held that interim relief in aid of arbitration falls under Chapter IX of the MAA as lex specialis. Thus, amending the MAA to specifically address interim relief in recognition and enforcement proceedings may be redundant and unnecessary.

 

2. Interim Relief Between the Award and Enforcement?

The Sixteenth Collegiate Court’s decisions on post-award interim relief also raise questions about its availability between the award and enforcement. For instance, the Indian Arbitration and Conciliation Act 1996 (the “IACA”) allows explicitly for such measures. In the case of Mexico, the broad scope of the MAA serves as an argument to allow such relief.

 

3. Interim Relief for the Losing Party?

Finally, can a losing party seek interim relief to resist enforcement? A relevant case study on this issue comes, again, from India, where courts have delivered conflicting decisions under Section 9 of the IACA. Some Indian courts have held that interim relief should be unavailable to the losing party, as its purpose is to safeguard the “fruits” of the arbitration. Others, however, have ruled that denying such relief could leave the losing party without remedy, particularly when preparing to seek the setting aside of the award (see here and here for further discussion on post-award injunctive relief in India). In Mexico, while the MAA does not explicitly provide for post-award interim relief—less so for the losing party—it does not prohibit it either. The lack of prohibition serves as a basis for granting such relief under certain circumstances.

 

Concluding Remarks—Mexican Judiciary Getting Off on the Right Foot

The rulings of the Sixteenth Collegiate Court reinforce arbitration as an effective dispute resolution mechanism in Mexico by acknowledging the judiciary’s discretion to grant post-award interim relief in recognition and enforcement proceedings. By adopting a proper reading of Article 1425 MAA, the Sixteenth Collegiate Court’s reasoning reflects the special nature of the Mexican arbitration regime and the need to safeguard arbitral awards. However, as this interpretation does not yet constitute a binding precedent, its practical application may still encounter challenges.

Legal certainty could be strengthened eventually through a binding precedent system or guidance from the Mexican Supreme Court in order to ensure a uniform approach to post-award interim relief. Whether this reasoning will prevail in future cases remains to be seen—but the foundations are present. Addressing these uncertainties would help provide consistent judicial support in aid of arbitration, enhancing Mexico’s standing as an arbitration-friendly jurisdiction in line with international standards.

 

*The views expressed in this post are solely those of the author and do not necessarily reflect the views of Alvarado Moreno Abogados.

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