A. LEGISLATION AND RULES
A.1 Legislation
International arbitration in Mexico continues to be governed by the Code of Commerce, which incorporates the provisions of the UNCITRAL Model Law of 1985 in its relevant section. The Code of Commerce was enacted in 1889, and its last amendment on arbitration took place in 2010.
Mexico is also a signatory to the New York and Panama Conventions on the enforcement of foreign arbitral awards.
Regarding Investment Arbitration, Mexico is a party to the ICSID Convention, welcoming foreign investments, and also, allowing foreign investors from countries that are parties to the treaty to access dispute settlement mechanisms in case of breaches of obligations.
As the three year period for investors to file claims under the North America Free Trade Agreement (NAFTA) is coming to an end, notices of intent shall be provided 90 days in advance no later than 1 April 2023 and investors have until 1 July 2023 to file their claims as the relatively new treaty, the United States-Mexico-Canada-Agreement (USMCA), entered into force on 1 July 2020.
A.2 Institutions, rules and infrastructure
Some of the most prominent local arbitration institutions in Mexico are the Centro de Arbitraje de México (CAM) and the Cámara Nacional de Comercio de la Ciudad de México (CANACO). There is also a Mexican Chapter of the ICC in Mexico City. The arbitration rules of CANACO have been the same since 2013 for regular proceedings and for expedited arbitrations they have not changed since 2018. The rules of CAM recently changed on 1 December 2022 and included modifications that will benefit the arbitral proceeding by adding a simplified arbitration proceeding (approximately USD 150,000, unless agreed otherwise) among other positive changes for the Mexican arbitration community.
Additionally, most of the major arbitration institutions operate in Mexico. The ICDR and the LCIA are better known and widely chosen. Mexican users and lawyers are familiar with these institutions and their rules. Each arbitration institution has its own infrastructure that is currently expanding to other major cities in the country, as arbitration is more commonly resorted to as an alternative means to resolve disputes.
B. CASES
B.1 Consolidated Water v. Mexico (ICSID Case No. ARB/22/6)
On 22 February 2022, Dutch investor Consolidated Water brough arbitration proceedings against Mexico based on the Netherlands-Mexico BIT. The matter involved investments through local subsidiaries NSC Agua, SA de CV and Aguas de Rosarito, SAPI de CV, in a seawater desalination plan project in Playas de Rosarito, Mexico.
The claims for USD 57.6 million were arising out of Mexican state entities’ termination of a public-private partnership agreement with the claimant’s subsidiary, Aguas de Rosarito, related to the development of a seawater desalination plant.[1] The outcome of the proceedings is pending to be resolved.
[1] United Nations – Investment Policy HUB, 2022: https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/1202/consolidated-water-v-mexico
