Provisional Relief in Support of Arbitration in Mexico

It is a well-established principle under Mexican law that court-ordered provisional relief in support of arbitration is available both before and during arbitration proceedings. Article 1425 of the Commercial Code (CC) allows parties to request the competent judicial authorities to order any such injunctive relief, either as pre-arbitral provisional relief, or after the arbitral tribunal has been constituted.

According to Article 1470 of the CC, court-ordered provisional relief in support of arbitration shall be obtained through the Special Procedure on Commercial Transactions and Arbitration regulated under Articles 1472–1476 of the CC. This procedure also applies to the recognition and enforcement of provisional relief ordered by arbitral tribunals.

Unless the parties agree otherwise, Mexican arbitration law provides concurrent powers to order provisional relief. Instead of being an exception to the principle of judicial non-interference, court-ordered provisional relief primarily aims to preserve the subject matter of the dispute, safeguard the arbitration proceedings and facilitate the enforcement of the arbitral award.

However, the availability of provisional relief from the judiciary has led to requests for relief that arguably interfere with the arbitration and with the arbitral tribunal’s jurisdiction, rather than safeguarding them. On 14 April 2023, a precedent of the Third Collegiate Court in Civil Matters of the First Circuit was published, which clarified the purpose and scope of provisional relief in support of arbitration, and ultimately reoriented the Mexican judiciary towards providing more arbitration-friendly assistance.

According to the precedent issued by the collegiate circuit court, interim injunctive relief issued in the context of the Special Procedure on Commercial Transactions and Arbitration cannot affect contract performance or impair the validity of the rights and obligations agreed upon by the parties.

While the aforementioned criterion reaffirms the availability of judicial provisional relief in support of arbitration (based on Articles 1470(III) and 1425 of the CC), it provides that the scope of any such injunctive relief cannot, under any circumstances, modify the rights and obligations of a given contract without a prima facie establishment of the case or allow the parties to breach their contractual obligations.

The Mexican judiciary considers that, since provisional relief aims to maintain and preserve the status quo during arbitral proceedings, it should not be misused to “unilaterally restrict, invalidate and/or hinder the rights agreed upon in the clauses of the contract”. Moreover, based on the general principle that interim relief may not prejudge on the merits of the dispute between the parties, this new precedent makes it clear that the rights and obligations set forth in the contract “may only be revoked or amended when the merits of the arbitration have been resolved.”

The foregoing also applies to the temporary suspension of contractual obligations resulting from the granting of pre-arbitral provisional relief, as this would amount to denying one of the party’s rights.

Therefore, provisional relief in support of arbitration may not have the effect of invalidating contractual obligations, even temporarily, as doing so would essentially supplant the arbitration and the relevant legal action by prejudging the merits of the dispute.

In addition to formally defining the scope of provisional relief in support of arbitration, the precedent repositions the Mexican judiciary’s role as a facilitator of arbitration. Moreover, it serves to protect the fundamental right of access to justice through arbitration, provided under Article 17 of the Mexican Constitution, by preventing the undue intervention of national courts in matters that are subject to arbitration and that are inherently sub judice.

This development is a significant step towards fostering a more effective synergy between arbitral jurisdiction and judicial assistance. In Mexico, court-ordered provisional relief has often been used not only to circumvent contractual provisions but also as a procedural mechanism to evade or obstruct the consequences of an agreement to arbitrate. As this new precedent clarifies that provisional relief in support of arbitration cannot be used to restrict, invalidate, amend, or suspend the rights and obligations agreed upon by the parties, it may also serve to ultimately counter the practice of anti-arbitration injunctions ordered under the umbrella of Article 1425 of the CC in circumstances that do not legitimately warrant the stay of the proceedings.