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13. What
is the general process of commercial litigation in Mexico (overview)?
The general
process of commercial litigation is comprised of five main stages for
both the executive (EP's) proceedings and the ordinary proceedings (OP's).
The main difference in these two types of proceedings -as we mentioned
before, is the shorter or longer periods of time available to parties
for executing any and all procedural actions within a given proceeding.
Some of the main features of each stage or phase are the following (considering
a contested lawsuit):
- Exhibition
stage. The process of litigation is generally commenced by filing
a formal complaint, and by proper service of process upon defendant,
allowing him from 5 to 9 days to file a formal written answer. After
the answer is filed, the plaintiff is given a 3-day period to reply
to any argument made by the defendant, and 9 days to reply to any counterclaim
that the defendant might sustain in an OP.
- Probatory
stage. In Mexico, any piece of evidence that might support our cause
of action (either documents, witnesses, experts, etc.), must be first
proposed to the court (asked for its admission) for its later rendering.
Such proposal must be made in the same complaint and answer briefs,
during EP's, and once allowed they should be rendered within 15 days.
During OP's, parties must request for a 10 day period to file a petition
proposing evidence, after which they will have 30 days to render all
evidence in full, including having such evidence ready for the appointed
hearing.
It is important to consider that in Mexico there is no pretrial discovery
phase or proceedings, so a party commencing a lawsuit will need to have
everything ready upon filing its claim: facts, proofs and supporting
arguments. Also, the procedure itself is mainly conducted in written
fashion. The nature, purpose and extension of the hearings are very
different from the "hearings" or "trial" in common law jurisdictions.
- Conclusion
stage. After all evidence has been rendered and the probatory stage
has ended, parties are given a 3-day period each to make allegations,
which will again have to provide and filed through formal briefs. Unlike
common law jurisdictions, there is no opportunity to give final oral
statements that will be kept on record and later on considered. Following
the allegation period, the Judge will have 15 days to decide its case
on OP's, and 8 days in EP's.
- Objection
stage. After a judgment has been rendered, there is a 9-day period
to file a petition for an appeal process -by which the proceedings or
the judgment itself can be reviewed by a Court of Appeals (generally
the State Superior Court). Each respondent in an appeal process is given
a 3-day period to reply to arguments and allegations made in the appellate
brief. Again, there are no oral arguments in this phase, and every allegation
will have to be made in writing.
Within 3 days after the Court of Appeals has received the case file,
it will decide whether to admit the appeal process or not. Following
this period, it will have 15 days to enter a decision and issue a resolution
either affirming or reversing the lower court's decision. (Also important
to consider is the possibility of a constitutional injunction proceeding,
which can be filed against the Court of Appeals' decision)
- Executive
stage. The final step in any proceeding will be executing the judgment.
This will only be possible when the resolution is final (no appeal or
amparo pending) and has the force of res judicata. During
this phase there is generally a 5-day period granted to the defendant
to voluntarily comply with the judgment. After such period has expired,
an execution process will begin, starting with the seizure of defendant's
property and proper sale by judicial auction.
Generally, remedies are limited to very specific situations during the
execution process, and there's a chance that the defendant might seek
amparo relief. Nevertheless, an amparo against execution
is also limited and generally only permitted to the judicial auction
itself.
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