Commercial Oral Trials in Mexico: Key to a More Judicial System?
-by Partner Luis Enrique Donnadieu Macias and Junior Partner Juan Luis Blanco Montoya, Müggenburg, Gorches y Peñalosa
1. PREAMBLE. Commercial Oral Trials in Mexico.
The “DECREE THAT REFORMS, ADDS AND DEROGATES SEVERAL PROVISIONS OF THE COMMERCIAL CODE, UNDERSIGNED BY INTEGRANTS OF THE COMMISSION OF ECONOMY”, published in the Federal Official Gazette on January 27, 2011 and through which the Commercial Oral Trials in Mexico were incorporated to our legal system, entered into force and full effect on January 27, 2012.
Its explanatory memorandum , invokes the aspirations of the Constituent Assembly of 1917 of the need for having a system of administration of justice which celerity, efficacy and efficiency may be enough to meet the social demand for state instruments that, in addition to solving the conflicts and ordering the restitution of the lost rights and goods, counted with the required promptitude and celerity that may avoid delays in the issuance of the resolutions to said conflicts.
Taking the above into consideration, the mentioned draft of decree proposed the creation of a system of administration of justice based in the preeminence of the oral system for the mercantile trials, particularly for the case of the ordinary proceedings, since they represent the larger number of proceedings prosecuted before the mercantile judges.
The explanatory memorandum states that its proposed normative structure is based in the principles of orality, publicity, equality, immediateness, contradiction, continuity and concentration.
Among others, the proposed mechanism emphasized the following highlights:
- Given the oral nature of the process, attempting to grant an effective
access to the justice to vulnerable and social groups with different
capacities, it provides the designation of interpreters for those groups.
- The judge is provided with disciplinary measures for the best conduction
of the trial.
- Suppression of all the personal notifications/ official communications,
except for the summons to Court.
- Requirement for issuing a written minute of every diligence/act.
- Inclusion of a preliminary audience, which is directed to depurate the
process, conciliate the parties with the direct intervention of the judge,
stating non-controversial facts, and to expedite the diligences related with
- The judge is granted with wide faculties to conciliate the parties.
- The parties are responsible of preparing their evidence, otherwise, their
proofs will not be admitted.
The above mentioned decree was published therefore on January 27, 2011 and entered into force on January 27, 2012. For such purposes, initially, the amount of the trials subject to the oral proceeding would be of up to $220,533.48 (Two thousand twenty-five hundred thirty-three Pesos 48/100) -nowadays, approximately USD$ 11,500.00 (Eleven thousand five hundred dollars)-.
Later, on January 9, 2012 a decree that entered into force on January 27, 2012, increased the amount of trials subject to these proceedings up to $500,000.00 (Five hundred thousand Pesos 00/100) -nowadays, approximately USD$ 26,500.00 (Twenty six thousand five hundred dollars)-, providing as well that those proceedings which main claim (excluding interests and accessory claims) do not exceed the mentioned amount, would be unappealable, this is, as single instance procedure .
The mentioned decree provided as well, that the local legislatures and the Chamber of Deputies of the General Congress may resolve on the budgetary provisions for the necessary infrastructure and training for its implementation, in specific, the local entities would have a term until July 1, 2013 to make effective the effects of the decree.
Notwithstanding the above, on January 25, 2017, a further decree, which entered into force the day after, amended several provisions of the oral mercantile proceeding, and in regard with its implementation it stablished the amounts subject to these proceeding, provided as follows:
From January 26, 2018, the amount would be increased to $1,000,000.00 (One million Pesos 00/100) -nowadays, approximately USD$ 52,500.00 (Fifty two thousand five hundred dollars)-;
From January 26, 2019, the amount would be increased to $1,500,000.00 (One million five hundred thousand Pesos 00/100) -nowadays, approximately USD$ 78,900.00 (Seventy eight thousand nine hundred dollars)-; and
From January 26, 2020, all the mercantile proceeding would be prosecuted through the oral proceeding despite of the amount of the claim.
A further decree of March 28, 2018 reduced the amounts described in the paragraphs above into $650,000.00 (Six hundred fifty thousand Pesos 00/100) -nowadays, approximately USD$ 34,000.00 (Thirty four thousand dollars)- as the general rule, extended into $1,000,000.00 (One million Pesos 00/100) from January 26, 2019 and maintaining January 26, 2020 for all the mercantile proceedings to be prosecuted through the oral proceeding, despite of the amount.
In connection with the above, it is important to make reference to a Constitutional amendment to section 16 of the Mexico Constitution, published on September 15, 2017, which entered into force the day after, provided that in order to follow or honor the legality / due procedure human rights, in those proceedings where the orality is the rule, it shall be enough that the Court issued a minute or record that grants certainty of the oral procedure and its content, along with the fulfillment of the due process provisions contained in relevant section 16.
In this context, last May 20, 2019, the Commissioner of the National Commission of the Regulatory Improvement, as a deconcentrated organism of the Ministry of Economy, published a decree through which it is implemented a National Program of Mercantile Oral Trials, providing that such program is a tool that seeks to accompany the Local Superior Tribunals and the Mexican Supreme Court of Justice in the implementation of the mercantile orality, to provide juridical security through efficient institutions that promote the certainty of the rights and obligations derived from commercial acts and to promote or encourage a culture that places the individuals as the central part of the governmental gestion, promoting as well the competitiveness and the employment, with the aim to improve the business environment.
The decree further explains that the National Commission of the Regulatory Improvement prepared the National Diagnostic of the Implementation of the Mercantile Oral Trials where it identified that up to 2018, in Mexico there were only 485 audience rooms available for the performance of oral mercantile audiences, and therefore, for 2020, 152 additional audience rooms were needed to meet the demand of mercantile controversies.
In such regard, and based on the results of the National Diagnostics Institute, up to June 30, 2018, it was identified that the country had only a 46% of implementation of the mercantile orality.
Therefore, in grounds of the faculties provided to the National Commission of the Regulatory Improvement, it issued last May 20, 2019, the Guidelines of the National Program of Mercantile Oral Trials.
2. Comercial Code Principles and Guidelines for Oral Trials in Mexico.
The Mercantile Oral Trial is designed to be a very efficient and expedite process, in fact, the procedure is divided in the following stages:
- Commencement of action or postulation stage. The procedural (written)
acts part of this stage are the claim, response and counterclaim, in its case
and exceptions and defenses, and response to the counterclaim.
- Preliminary hearing. In this oral hearing, the Judge conducts the
depuration of the process, attempts to conciliate the interests of the
parties, fixes the agreements related with non-controversial facts,
admission of evidence, objection to documentation and appoints the
date for the Trial Hearing.
- Trial Hearing. In this oral hearing, the evidence/profs will be developed/
released, and parties will be granted with the chance to formulate their
allegations and if possible, the judgment will be issued. This hearing may
also be continued in a second event, where the judgment will be issued
by the Judge and the parties will be granted with a 60 minutes term to
request clarifications to relevant judgment.
The principles that prevail in commercial oral trials in Mexico are primarily established in Mexico Constitution and in article 1390 Bis 2 of the Commercial Code, and these include: orality, publicity, equality, immediacy, contradiction, continuity and concentration. The Mexican Supreme Court of Justice has, throughout several precedents, interpreted and determined the scope of such principles:
- Orality: evidently, this is the guiding principle in this type of trials,
establishing the general terms and structure of the procedure, and that
should be understood as the obligation that the parties must be present at
the hearings, so that they communicate in a spoken (not written) manner,
in such a way that the judge listens directly to all the arguments that are
exposed at that moment. It has also been determined that orality allows or
is the origin to the other principles.
- Publicity: this principle has a two-tier interpretation, both related with
the transparency of the procedure, but the first one referring that the
submission of arguments and evidence, and in general terms, every stage
of the trial will be developed publicly, not only for the parties involved, but
to anyone who wants to witness the procedure; and the second as a right of
the parties, to be judged in a public hearing by a Judge or a Court.
- Equality: this principle states that the same opportunities must be
granted to allege, prove and defend to each one of the parties in trial.
- Immediacy: this principle indicates that any hearing will be conducted
entirely in the presence of the Judge, obligation that cannot be delegated
to any other person, especially in the case of admission, relief and
evaluation of evidence, and in the issuance and explanation of the judgment.
- Contradiction: this principle allows balance between the parties in
the trial, which results in the right to refute, clarify, reject, contradict the
arguments or evidence submitted by the counterparty.
- Continuity: As its name tells, this principle mandates that the procedure
must be developed continuously, so that each of the stages in which it is
divided is duly fulfilled and, once a stage is finished, advance to the next
one without being possible to return to the previous one.
- Concentration: The main objective of this principle is procedural
speed, and therefore it refers to the unification of determined matters in a single act, which means that is feasible to solve different independent
issues in the same hearing.
3. National Program for the Implementation of
Commercial Oral Trials in Mexico
3.1 The National Program
According to the official web site of the Mexican Federal Government , the National Program for the Implementation of Commercial Oral Trials in Mexico aims to design a critical path for the implementation of the oral trial in mercantile and civil claims, as well as to provide several indicators to measure the progress of the entities in the implementation of these proceedings.
Further, the Federal Mexican Government makes reference to the creation of the Special Committee for the Improvement of the Procedural Regulations by the National Commission of Superior Tribunals of Justice, with the purpose to work permanently in the justice administration programs in Mexico.
In such regard, the Guidelines of the National Program of Mercantile Oral Trials, refer to a qualification, in a 1 to 100 point scale, of minimum standards, objectives and mechanisms for the proper operation and function of the Oral Courts, which include, among others, (i) Court Performance -time frames for resolutions-, (ii) Infrastructure -i.e. hearing rooms, support systems-, (iii) Organizational Procedures -i.e. training courses for the Court Personnel-, (iv) Databases with judicial statistics -Court rooms, workloads, procedures, etc.- and (v) Technological Systems.
Considering the above mentioned standards, the implementation procedure of the relevant Program, refers to the issuance of a Certification that validates the operation of the Local/Federal Courts for a one or two year term, and/or indefinitely, when the requested requirements are fulfilled.
3.2 Qualification Standards // Guidelines
The National Commission will issue the Certification to any of the Local Superior Tribunals and the Mexican Supreme Court of Justice, upon qualifying the following minimum standards:
- Procedural performance: efficient citations to Court and resolution of the
claims, satisfying the deadlines stablished in the Commercial Code.
- Court Organization: procure organized structures for public servers,
along with training programs for both public servers and litigators.
- Infrastructure: sufficient courtrooms with proper equipment for the
- Databases: containing the information regarding the coverage of the
Courts and its workload; along with a record of systematized and
transparent judicial statistics.
- Technological systems: for courtrooms assignations, listings, notices,
official communications, track and monitoring of the trials.
The above mentioned standards, are qualified in a 1 to 100 scale, in which the requesting parties, should at least obtain a 60 points in order to obtain a 1 year certification; a 2 year certification will be issued with a score of 75 points, and a permanent certification will be issued with a 90 or above result.
In such regard, prior to the issuance of the Certification, the National Commission of the Regulatory Improvement initiates an administrative procedure in order to revise the application form -which refers to the above mentioned standards- and conduct on-site visits, in order to issue a Diagnose and a Working Program. The results of the Diagnose and the Working Program, will be served to the requested Court for its implementation in a 4 month period.
Once the 4-month period is concluded, the National Commission of the Regulatory Improvement will issue the corresponding Certification.
Finally, it is important to consider that the above mentioned procedure will have a maximum duration of 12 months, in which all the stages must be executed. If the procedure is not completed in such term, on account of the Court, the National Commission of the Regulatory Improvement could dismiss the procedure.
- Timeframes for the obtention of the Certification are extensive, considering
that by January 26, 2020, all the mercantile proceeding would be prosecuted
through the oral proceeding.
- The minimum standards/guidelines of the Program protect the orality,
publicity, equality, immediacy, contradiction, continuity and concentration
principles of the Oral trials.
- The possibility, to obtain a 1 or 2 year certification, along with the Working
Program implementation, should be well accepted by the Courts, and
procure the progressive results in the issuance of permanent Certifications.
- Considering that Commercial Claims could be filed before Local and/or
Federal Courts, the homogeneous implementation of the minimal standards
should simplify the implementation of the Program.
- The incorporation of Technological systems and Databases will give the
possibility to identify areas for potential improvement.
- The requisites for the obtention of the Certification seem to be very clear
and measurable from an objective point of view; but perhaps, the inclusion
of a subjective/justice-oriented requisite, may as well be useful in benefit
of the effectiveness of the Commercial Oral Trials in Mexico. Measuring
the appeals derived from incorrect prosecution of oral hearings, and their
consequences, and of course limiting the number of allowed events, could
(in addition of constituting responsibility for the members of the Court)
contribute to the effectiveness of these kind of proceedings and, of course,
increase the legal certainty and confidence of the users of the judicial
- Orality: evidently, this is the guiding principle in this type of trials,