EXPECTATIONS OF ARBITRATION IN MEXICO: DODGING THE HUMAN RIGHTS BULLET
In recent years, Mexico’s legal regime has undergone paradigmatic reforms. One of the most significant was passed in mid-2011, whereby the Mexican Constitution §1 was amended to embrace the pro homine principle and protection of international human rights standards. Since then, interpretation and enforcement of all legal statutes must seek the broadest protection of human rights.
Common sense would lead to the conclusion that these reforms would not have a direct effect on arbitration-related provisions. Arbitration addresses business relationships where human rights do not play an axial role; however, and inadvertently, this is not the case. Thus, arbitration is now in the crosshairs of the human rights trend in two different – yet equally important – scenarios: Amparo proceedings and class actions.
One of the key features of the Human Rights Amendments – as these reforms later came to be known – was revamping the Amparo Act. The Amparo (Spanish for ‘protection’) is a proceeding whereby a citizen (Quejoso) files a complaint before a federal court seeking redress for human rights violations committed against it by a State entity (e.g., courts, public prosecutor, Congress, etc.). This proceeding is the prime human rights defence method in the Mexican legal system.
Seeking to enhance the scope of protection of the Amparo, Congress set forth that the claimant not only could resort to this proceeding for violations arising out of State action, but also from private parties’ actions whenever such actions unilaterally and mandatorily altered a certain legal status quo, provided that the private parties’ modifying conduct was governed by a statute.
Oct-Dec 2014 issue
Hogan Lovells BSTL