The Incorporation Of An Arbitration Clause In Commercial Contracts - Corporate/Commercial Law - Mondaq Mexico - Mondaq Business Briefing - Books and Journals - VLEX 808602297

The Incorporation Of An Arbitration Clause In Commercial Contracts

Author:Mr Guido Ezequiel Brandenburg Szmigielski
Profession:Muggenburg, Gorches y Penalosa S.C.

Although adhering to arbitration is based on the parties' autonomy of will as well as on contractual freedom, formal incorporation of arbitration into Mexican legislation as an alternative mechanism to dispute resolutions had its origin in 1993 with the amendment of the Mexico Commercial Code, according to which the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration was adopted. However, there wascstill certain legal void derived from the fact that the Constitution contemplated one legal procedure only as a means for dispute resolution. In this regard, Article 17 established that "every person hascthe right to be administered with justice by courts ...", which led to the interpretation that the right to claim in court certain benefit without the need to submit to an arbitration procedure (even if it had been previously agreed upon) prevailed, since there was a fundamental right that should be guaranteed by the State.

Derived from the above, compromise on an arbitration agreement was considered as a waiver to exercise the right to start an action before judicial tribunals, same waiver that could be alleged to be null, since while the parties in exercise of their autonomy of will can renounce their rights, as established in Article 6 of the Civil Code, it is important to mention that access to judicial tribunals is defined by enforceable legal precedents ("jurisprudencia") as the individual public right inherent to every person within the terms established by law, to access expeditiously to independent and impartial courts, to raise a claim or defend against it, consisting the first stage prior to the trial, the right of access to jurisdiction, part of the right of action as a kind of petition addressed to the jurisdictional authorities and which motivates a pronouncement.

It was until the amendment to Article 17 of the Constitution published in the Federation Official Gazette on June 18, 2008, in which a paragraph was added that foreseen in the fundamental norm the existence of alternative dispute resolution mechanisms, a foundation that came to dispel any doubt regarding the obligation to attend the arbitration if it has been agreed. The above, since the power to resolve disputes through alternative mechanisms is recognized in the Constitution, the arbitration agreement was conceived as the affirmative exercise of constitutional freedoms, and in this sense it is that the...

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