Mexico: UNCITRAL Model Law Related Case Law

AutorLeonel Pereznieto Castro & James A. Graham, Board of Editors
Páginas190-191
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6 We may affirm on grounds different than those relied on by the circuit court. Vanstone v.
Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995).
Mexico: UNCITRAL Model Law Related Case Law
Leonel Pereznieto Castro & James A. Graham, Board of Editors
2004 was a good if not an excellent year for the Mexican Arbitration Community. Two main
decisions had been handed out, rejecting fallacious arguments, and confirming that arbitration is
an autonomous institution that does not obey to the general rules applicable lo judicial
proceedings. In the same way, as Mexico adopted the UNCITRAL Model Law on Arbitration, the
following commented decisions might be considered by other States that also adopted the same
international instrument.
Article 18 UNCITRAL
The sole fact of an existing friendship between an arbitrator and a party’s lawyer cannot constitute per se a
biais
In a case judged August 9, 2004, in first instance1, party X claimed that the arbitration agreement
contained in the contract should be nullified because the legal representative Y of the counterpart
Z is also the director of the arbitration center that had been chosen in the mentioned agreement
and that this fact had never been disclosed to party X. Thus there would a violation of the equality
principle between parties, as Y could influence the choice of arbitrators and eventually their final
decision on the merits. Furthermore, according to the claimant, the previewed arbitrators had
friendship relations with Y. However, the judge considered first of all that there is no judicial
competence in presence of an arbitration clause, and, second, the chosen arbitration center’s rules
establish proceedings to challenge the appointment of arbitrators which independence or
neutrality could be compromised. As the first Circuit already ruled2, the sole fact of an existing
friendship between an arbitrator and a party’s lawyer cannot constitute per se a biais. In 2004, the
Supreme Court of the Federal District of Mexico confirmed the first ruling underlying that it had
no jurisdiction to nullify the arbitral agreement at this stage and that it belongs to the arbitrators to
rule on this point3.
On August 11, 2004, the Second District for Civil Matters for the Federal District of Mexico4
canceled the decision of the Supreme Court of the Federal District of Mexico, because Article
1424 of the Commerce Code, that corresponds to Article 8 of the UNCITRAL Model Law,
establishes expresis verbis the State tribunals’ competence for nullifying arbitration agreements,
even if during the time of judicial proceedings the arbitration may go on.
2 Segundo Tribunal Colegiado en Materia Civil del Primero Circuito, 3782/2002, 3/5/2002.
3 Tercera Sala Civil del Tribunal Superior de Justicia del Distrito Federal, 692/2004.
4 Juez Segundo de Distrito en Materia Civil en el Distrito Federal, 556/2004-I.

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