DISCLAIMER: The information in this article is not, nor is it intended to be legal advice. Our Law Office [HMH Legal] will only provide legal advice after having entered into an attorney-client relationship. It is imperative that any action you take be done on the advice of counsel, and not based solely upon this article.

Homologaciόn under Mexican Law

The seemingly endless formalities associated with proceedings under the Mexican legal system can be puzzling to outsiders. Nowhere is this more the case than when a U.S. party needs to enforce a judgment in Mexico.

Under the Uniform Enforcement of Foreign Judgments Act adopted by most U.S. states, the procedure for enforcing a judgment in another U.S. district is fairly simple. The filing party need only have a court clerk complete a registration form and attach a certified copy of the judgment. A judgment from a U.S. federal court does not even require that notice of such filing be given to the debtor.

Mexico’s enforcement proceedings are a different story.

The process involved for the recognition and enforcement of a foreign judgment in Mexico – called homologaciόn – is quite rigorous. It involves both local and federal rules of procedure, and goes hand in hand with the procedure for letters rogatory discussed later in this article. The entire process is governed by a civil law system that relies heavily on strict and full compliance with all formalities outlined under relevant statutes. It is wise then, to consider all requirements and formalities for homologaciόn before commencing proceedings in your local jurisdiction in order to assure that such requirements are strictly complied with throughout the process.

This article explains the process of homologaciόn, pointing out the requirements under Mexico’s local and federal laws. It also makes important suggestions to consider when planning to initiate proceedings against a Mexican debtor in a non-Mexican jurisdiction. However, the article will not address, and considerations herein do not apply to, arbitral awards.

Mexican Laws Regulating the Recognition and
Enforcement of Foreign Judgments

There are two main International Treaties that govern the recognition and enforcement of foreign judgments in the American region:

The Montevideo Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards; and
The La Paz Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments.

These Conventions have been adopted by Mexico. Their provisions, however, only come into play when the judgment to be enforced comes from a country that is also a party to these treaties. Enforcement of judgments from Canada, the United States, or any other country outside Latin America is not covered under these Conventions, but is subject instead to Mexico’s procedural laws.

Letters Rogatory

A letter rogatory is a formal request to a foreign court for judicial assistance, in this case enforcement of a judgment. Most local laws in Mexico provide that the process of letters rogatory conform with the rules set forth in the Mexican Federal Code of Civil Procedure (FCCP). The FCCP (Article 554) requires that every letter rogatory that implies forced execution upon property or persons shall be subject to its regulations on homologaciόn. Because the FCCP requires the same conditions for homologaciόn as most state laws in Mexico, this article refers only to the Federal Code. (If seeking to execute on a foreign judgment in Mexican states other than Baja California, Nuevo Leόn, Jalisco, or Distrito Federal it is recommended that you seek further legal advice from an attorney knowledgeable of the laws of that state.)

Conditions for Homologaciόn According to the FCCP

According to article 571 of FCCP, the recognition and enforcement of a foreign judgment can take place only when the following conditions are met:

All formalities for letters rogatory are satisfied.

The execution of a foreign judgment has to be formally requested by the court that rendered the judgment, and the request has to take place by means of a letter rogatory. The letter rogatory should include:

name of the issuing authority and the court or authority whose execution is requested;
identity and domicile of parties involved, including the place where the defendant (debtor) can receive notice;
nature, purpose and extent of the request;
brief statement of facts that justifies the request;
all judicial acts requested throughout the proceedings.

The formalities that must be complied with in a letter rogatory:

Letter rogatory should be certified or authenticated. This generally means that all documents must bear the original signature of the issuing judge and clerk certifying that said documents are true and correct copies from the originals.
Documents must be legalized. The process of legalization is done by obtaining another document called an Apostille, which will be attached to the authenticated letter rogatory. The Apostille is obtained from the State Department or Secretary of State, and its purpose is to give a public document full binding effects abroad.
Documents must be translated. According to Article 553 of the FCCP, letters rogatory and all documents pertaining to them should be translated into Spanish. It is recommended that such translation be done by a certified translator, one that is appointed by the State Supreme Court of the Mexican State where enforcement is intended, and that such translation be monitored by plaintiff’s (creditor’s) counsel in Mexico.
Request must include a statement that helps satisfy the comity condition. According to Article 571 of the FCCP, Mexican courts will not enforce a foreign judgment if it is proven that the issuing court would not enforce a Mexican judgment under similar circumstances. Therefore, all letters rogatory should include a short statement acknowledging that under equal circumstances the issuing (foreign) judge would recognize and enforce a (Mexican) judgment coming from the Mexican court.
Request must include a statement that helps prove that the judgment to be enforced is final. The FCCP requires that the judgment to be enforced be considered final, and that there is no legal recourse pending or available to the defendant (debtor). If there is no possibility of obtaining a separate statement or resolution proving finality, then the letter rogatory should contain such statement.
Full and express powers are to be given to the Mexican court. The letter rogatory should include a statement by the requesting court granting full powers to the foreign court for execution of the judgment. In addition, it is important to spell out the specific powers of the (Mexican) court, including but not limited to:
1. power to seize debtor’s property;
2. power to issue attachment or garnishment orders;
3. power to issue and make use of preventive or security measures;
4. power to impose fines;
5. power to decree the temporary arrest of any person to comply with the court order;
6. power to order the entering of private property via the use of public force;
7. power to carry out judicial auctions or bid sales for execution of seized property;
8. power to assign funds to the plaintiff (creditor).
Counsel in Mexico should be appointed and an address must be designated. The letter rogatory must include a statement appointing an attorney, in Mexico, to act on behalf of the plaintiff (creditor). An address that falls under the requested court’s jurisdiction must also be provided. Do not rely solely on appointing an attorney, but also provide him with a formal power of attorney. This is suggested since the right to point out goods to be seized during execution is a right specially conferred on the plaintiff himself, or his legal representative, but not to his Counsel of Record. A specific statement in the letter rogatory should include an authorization “according to Article 577 of the FCCP” for plaintiff’s counsel to request partial executions, should an execution of a judgment not be granted in its entirety.

Judgment is not the result of an In Rem right.

According to Barron’s Law Dictionary, actions In Rem are “those which seek not to impose personal liability but rather to affect the interests of persons in a specific thing …Typical modern examples are actions for partition of, or for foreclosure of a lien upon, or to quit title to, real estate.”

The court rendering the judgment had proper jurisdiction to try the matter and to pass judgment.

According to the FCCP, the judge or court that rendered the judgment must have had proper jurisdiction to try the case and to decide it. It is important, then, to consider the following rules on jurisdiction according to the FCCP:

Venue selection clauses will be valid and enforceable if there is no actual obstacle or denial of justice, considering the circumstances involved and its relations among the parties (Article 566, FCCP);
Venue selection clauses will not be valid when the right to select a venue works exclusively in favor of one of the parties (Article 567, FCCP)
If there is no venue selection clause, according to Article 24 of the FCCP, territorial jurisdiction is conferred on the court of:
1. the place designated by the defendant to be notified by court for discharge of obligations;
2. the place where the fulfillment of the obligation was agreed to; and
3. the address or place of residence of the defendant (debtor).

Service of process has been completed upon defendant in due legal form.

According to Article 572 of the FCCP, a request for recognition and enforcement of a judgment has to be supposed by documents that prove proper service of process. Accordingly, such notice should have been provided the defendant with the opportunity to fully defend himself under due process of law rules.

The FCCP does not require that such service of process meets any special form under Mexican law, nor that the service of process is substantially equivalent to that accepted by the law of the state where the judgment is to take effect.

The judgment must be final and have the force of res judicata.

We have already made relevant comments regarding this requirement during the review of the formalities required for letters rogatory. It is important to keep in mind, however, that Article 572 of the FCCP requires proof that the judgment is res judicata. Failure to provide this either in the letter rogatory or in separate form will automatically deny enforcement.

There must be no case tried by a Mexican court that is a result of the same legal actions.

Precautions should be taken to ensure that no case has been filed or pending by a Mexican court regarding the same legal actions. The FCCP provides, however, that if there is a case, such proceedings must already account for legal notice upon defendant (debtor), or that at least the letter rogatory for service of process has already been carried out and filed with the Foreign Affairs Ministry in Mexico (Secretaría de Relaciones Exteriores). (There is no need for the plaintiff (creditor) to provide any evidence to the contrary of this provision.)

The judgment must not be contrary to Mexican public policy.

This means that the legal claim that originated the judgment, the legal issues involved, the judgment itself, its ruling, or any of the restitutions, indemnities or relief granted, must not contradict public policy principals provided under Mexican law.

Usually, courts will consider that indemnities or any relief that is not recognized under the laws of Mexico will contradict public policy. A judgment of such kind, therefore, will not be enforceable in court. This could be the case of awards granted out of tort actions, which are restricted in Mexico to a maximum amount cap according to the Federal Labor Code. Another possible situation could be the case of awards for punitive damages, which are not recognized at all under Mexican law.

Nevertheless, Article 577 provides an opportunity for plaintiff to request partial recognition and enforcement should a judgment not be considered valid and enforceable in its entirety. (As stated previously, full powers should be granted to the counsel of record in Mexico to be able to file this petition. This can be accomplished with the letter rogatory or with a separate power of attorney.)

Also considered against public policy is any proceeding that has not met the basic legal standards provided under the Mexican Constitution for due process of law. These basic legal standards comprise the:

Proper service of process;
Opportunity to defend yourself in court;
Ability to make allegations and to introduce evidence in court.

The absence of any of the above formalities during the initial proceedings that resulted in the judgment to be enforced will invalidate the judgment itself, either at the process of homologación, or later on through the Constitutional Injunction Proceeding (Amparo).

The judgment must fulfill all the formal requirements necessary to be deemed authentic.

Authentication of a foreign judgment involves a two-step process:

Certification by court officials that the judgment document is a true and correct copy of the original document;
Obtaining an Apostille from the proper authorities, like the State Department, Secretary of State, etc.

Procedure for Homologación According to the FCCP

The process for homologación can be considered a summary proceeding. FCCP Article 574 requires that the parties involved be given a nine-day period (after filing documents for enforcement) to defend themselves either through allegations or requesting the introduction of evidence in court. After the court has decided what evidence is to be admitted, it will set up a hearing date for re-production. Once the evidence is fully reviewed, the court will issue a judgment either granting the enforcement or denying it. An appeal must be filed within five days.

Four Steps in the Process of Homologación

Although the process for homologación may seem complex, it can basically be broken down into four steps:

Determine if the judgment meets the conditions required to be enforceable in Mexico:
1. a. It is not a result of an In Rem right;
2. The court of origin had proper jurisdiction;
3. The judgment is res judicata;
4. There is no case pending in Mexico involving the same legal action; and
5. The judgment is not contrary to public policy in Mexico.
Obtain a letter rogatory that meets the requirements stated earlier, including:
1. All facts of the case: identities and locations of all parties, including both the foreign and Mexican courts, nature of request, brief statement of facts, and judicial acts requested of the Mexican court;
2. Statement from the court to satisfy comity condition;
3. Statement proving that judgment is res judicata;
4. Statement giving full and specific power to the executing court; and
5. Statement appointing counsel and specifying his address in Mexico.
Provide all required documents, including:
1. Letter rogatory;
2. Original judgment;
3. Copy proving proper service of process;
4. Copy proving that judgment is res judicata (if it is not included in the letter rogatory); and Separate power of attorney for counsel in Mexico.
File all documents in the proper Mexican court. The documents should be:
1. Authenticated;
2. Legalized by Apostille;
3. Translated into Spanish.

Follow these guidelines closely for the enforcement of foreign judgments in Mexico. Failure to do so will not only hurt you in a contested proceeding, but also in the case of default judgments.

*****

Romelio Hernández is president and director of litigation for HMH Legal. Based in Tijuana, Baja California, Romelio works extensively with foreign exporting companies and collection agencies, assisting with their out-of-court and legal collection efforts throughout Mexico. He provides guidance and general counsel to foreign companies in mitigating the various risks of selling internationally. Romelio is a member of the Commercial Law League of America, the International Bar Association, the OtayMesa Chamber of Commerce, and Rotary. He is a graduate of Universidad Autonómade Baja California, and was admitted to practice law in Mexico in 1997.

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Enforcing Foreign Judgments in Mexico

Avoiding Pitfalls