Post-Award Interim Relief in Mexico: When the Enforcement of the Arbitral Award Needs That Extra Push

On February 14, 2024, the Sixteenth Collegiate Court in Civil Matters of Mexico City (the “Sixteenth Collegiate Court”) decided two related cases (Amparo en Revisión 402/2023 and Amparo en Revisión 461/2023, published on January 17, 2025 in the Mexican Official Gazette), addressing the availability of injunctive relief in the context of the recognition and enforcement of arbitral awards. These decisions represent an early judicial approach in Mexico regarding post-award interim measures.

This post provides an overview of these decisions, a brief analysis, and concluding remarks on the issue.

What’s The Matter? – Enforcing Awards And Freezing Assets In Mexico

1. The ICDR Award

On November 23, 2020, an International Centre for Dispute Resolution (the “ICDR”) arbitral tribunal seated in Houston, Texas, comprising Luis O'Naghten, David Arias, and Lucía Ojeda (the “Tribunal”), rendered an arbitral award arising from a multi-party arbitration (the ICDR Award). The dispute involved a Telemetry, Tracking & Command ("TT&C”) Provision Agreement between SSL Digital and Quetzsat, SES Engineering Luxembourg, SES Engineering US, and others. The Tribunal ruled in favor of the Respondents, ordering SSL Digital to pay various sums, including legal fees and costs. Subsequently, one of the parties (the “Applicant”) initiated proceedings to recognize and enforce the ICDR Award in Mexico City.1

2. The Enforcement Proceedings in Mexican Courts

On March 27, 2023, the Applicant sought the recognition and enforcement of the ICDR Award (the “Enforcement Proceedings”) before the Sixteenth Civil Judge of Mexico City (the “Sixteenth Civil Judge”) and requested interim measures on two occasions.

A.    The First Application

On June 22, 2023, the Applicant sought injunctive relief to attach the Defendant’s assets in the Enforcement Proceedings (the “First Application”). However, on July 13, 2023, the Sixteenth Civil Judge dismissed the First Application (the “First Decision”), citing the following reasons:

• Infeasibility: The “general rules for interim measures” do not apply to the recognition and enforcement of arbitral awards.
• Scope of Interim Relief: The Mexican Arbitration Act (the “MAA”) limits interim measures to pre- or mid-arbitration stages.
• Unsuitability: Asset attachment is inappropriate for enforcing the ICDR Award.

The Applicant challenged the decision before the Twelfth District Judge in Civil Matters of Mexico City (the “Twelfth District Judge”), arguing the following:

• Misinterpretation of Art. 1425 MAA: The Sixteenth Civil Judge wrongly restricted interim measures to pre- or mid-arbitration stages despite the wording of Article 1425 MAA (akin to Article 9 of the UNCITRAL Model Arbitration Law).
• Exclusion of Art. 1177 MCC: The Sixteenth Civil Judge failed to apply Article 1177 of the Mexican Commercial Code (the “MCC”), which allows courts to grant interim measures in any commercial proceedings.
• Suitability: Asset attachment is necessary to ensure the collection and enforcement of the ICDR Award.

On September 20, 2023, the Twelfth District Judge upheld the First Decision, reasoning the following:

• Infeasibility: The MAA does not allow for post-award interim measures in recognition and enforcement proceedings.

• Scope of Interim Relief: Interim measures under Chapter IX of the MAA are limited to pre- or mid-arbitration stages, ensuring legal certainty.

  Lex Specialis: The MAA, as the specialized legal framework, prevails over the general injunctive relief provisions in Article 1177 MCC.

   

B.    The Second Application

On July 12, 2023, the Applicant submitted a second request for injunctive relief in the Enforcement Proceedings (the “Second Application”).

On August 8, 2023, the Sixteenth Civil Judge dismissed the Second Application (the “Second Decision”) on the same grounds as the First Decision. The Applicant also challenged this ruling before the Twelfth District Judge, raising the same arguments as in the First Decision challenge.

On September 23, 2023, the Twelfth District Judge, once again, confirmed the Sixteenth Civil Judge’s ruling, maintaining the reasoning set forth in the First Decision.

Ultimately, the Applicant challenged both decisions rendered by the Twelfth District Judge before the Sixteenth Collegiate Court.

What Does The Sixteenth Collegiate Court Say? – Post-Award Interim Measures? Sure Thing!

On February 14, 2024, the Sixteenth Collegiate Court reversed the Twelfth District Judge’s decisions, holding that interim relief may be granted in recognition and enforcement proceedings. The Court found that:

• Absence of an Explicit Prohibition: Article 1425 MAA does not explicitly prohibit post-award interim measures.
• Ensuring Enforcement Effectiveness: Interim measures serve to safeguard the payment of the award during enforcement proceedings.
• Res Judicata Pending: The pending recognition of the award does not preclude the granting of interim measures.
• Teleological Interpretation: A purpose-driven interpretation of Article 1425 MAA supports interim measures to protect enforcement effectiveness.

The rulings of the Sixteenth Collegiate Court are consistent with previous decisions endorsing the autonomous and special nature of the MAA and judicial discretion on interim relief in aid of arbitration, and provide an initial approach to the availability of post-award interim relief in recognition and enforcement proceedings. Nonetheless, this interpretation may still face challenges, as it is not yet binding.

So far, the Sixteenth Collegiate Court has handled the issue consistently with other decisions rendered by the Mexican judiciary—hopefully, this consistency will not be affected by the recent judicial reform (see here and here for further discussion on the new judicial reform in Mexico). However, it remains to be seen whether this interpretation will prevail in future cases, since there is neither a binding precedent nor a decision of the Mexican Supreme Court in this regard.

What Loose Ends Are We Left With? – A Losing Party Seeking Interim Relief? And Some Other Questions

• whether the MAA should be amended to expressly address interim relief in the context of the recognition and enforcement of arbitral awards;
• whether interim relief is available in Mexican courts after the award is rendered but before commencing recognition and enforcement proceedings under the current MAA framework; and
• whether a losing party resisting recognition and enforcement can seek interim relief.

These concerns may apply to some extent to those jurisdictions that have adopted the UNCITRAL Model Arbitration Law.

1. Amending the MAA: A Redundant Proposal?

It is understandable that parties tend to rely on the MCC rather than the MAA when seeking interim relief in the recognition and enforcement of an arbitral award, given that  Article 1177 MCC encompasses such proceedings by definition. However, Mexican courts—such as the Sixteenth Collegiate Court—have held that interim relief in aid of arbitration falls under Chapter IX of the MAA as lex specialis. Thus, amending the MAA in order to specifically address interim relief in recognition and enforcement proceedings may be redundant and unnecessary.

2. Interim Relief Between the Award and Enforcement?

The Sixteenth Collegiate Court’s decisions on post-award interim relief also raise questions about its availability between the award and enforcement. For instance, the Indian Arbitration and Conciliation Act 1996 (the “IACA”) allows explicitly for such measures. In the case of Mexico, it is not as clear.

3. Interim Relief for the Losing Party?

Finally, can a losing party seek interim relief to resist enforcement? A relevant case study on this issue comes, again, from India, where courts have delivered conflicting decisions under Section 9 of the IACA. Some Indian courts have held that interim relief should be unavailable to the losing party, as its purpose is to safeguard the “fruits” of the arbitration. Others, however, have ruled that denying such relief could leave the losing party without remedy, particularly when preparing to seek the setting aside of the award (see here and here for further discussion on post-award injunctive relief in India). In Mexico, while the MAA does not explicitly provide for post-award interim relief, it does not prohibit it either.

Concluding Remarks

The rulings of the Sixteenth Collegiate Court acknowledge the judiciary’s discretion to grant post-award interim relief in recognition and enforcement proceedings. However, as this interpretation does not yet constitute a binding precedent, its practical application may still encounter challenges.  Whether this reasoning will prevail in future cases remains to be seen. A definitive answer may eventually come through a binding precedent or guidance from the Mexican Supreme Court. Addressing the uncertainty surrounding the availability of post-award interim relief would help provide consistent judicial support in aid of arbitration, enhancing Mexico’s standing as an arbitration-friendly jurisdiction in line with international standards.2

• 1

  It is not clear from the court's public records who the party seeking recognition and enforcement of the ICDR Award was, as the identities of the parties are redacted.

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  The views expressed in this post are solely those of the author and do not necessarily reflect the views of Alvarado Moreno Abogados.