Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Mexico

Federal Civil Code1

[…]

Article 12

Mexican law applies to each and all persons within Mexico as well as to acts and events which occur within its territory or under its jurisdiction, including those that the parties submit to the Mexican jurisdiction, unless Mexican law provides for the application of a foreign law, or it is otherwise prescribed by treaties or conventions to which Mexico is party.

Article 13

The applicable law will be determined in accordance with the following rules:

  • legal situations properly arising from any entity of Mexico or a foreign country in accordance with their laws are to be recognized as valid;

  • the status and legal capacity of individuals are governed by the laws of the place of their domicile;

  • the creation, regime and extinguishment of rights in rem in immovable property, as well as leasing agreements and temporary tenancies of immovable property, and movable property, are governed by the laws of the place where the property is located, irrespective of the foreign nationality of the holders or owners of such rights and property;

  • the formalities required for legal acts are governed by the laws of the place where they are concluded. Nonetheless, in the event such acts are intended to produce effects within the Federal District, or in Mexico regarding federal matters, they may observe the formalities prescribed in this Code; and

  • except as provided in the preceding paragraphs, the legal effects of acts and contracts are governed by the laws of the place of performance, unless the parties have validly designated a different law as applicable.

Article 14

In applying foreign law, the following rules will be observed:

  • foreign law will be applied in the manner that the equivalent foreign judge would apply it, whereby the Mexican judge will take legal notice of all necessary information concerning the text, period of validity, meaning and scope of the foreign law;

  • foreign substantive law will be applied except when, in view of the particular circumstances of the case and as an exception, regard must be had to the conflict of laws rules of that foreign law which in turn require application of Mexican substantive norms or of those of a third state;

  • the application of foreign law will not be prevented because of the lack under Mexican law of institutions or procedures that are essential to the applicable foreign institution, if analogous institutions or procedures are available;

  • p. 3539prior, preliminary or incidental issues that may arise in connection with a principal issue will not necessarily be resolved in accordance with the law applicable to the principal issue;

  • when different aspects of the same legal relationship are governed by different laws, those laws will be applied harmoniously, seeking to achieve the goals aimed at by each of those laws. The tensions caused by the simultaneous application of those laws will be resolved by having regard to the equitable requirements of each specific case.

The provisions of this Article apply when the law of a different federal entity within Mexico is applicable.

Article 15

Foreign law will not be applied:

  • when fundamental principles of Mexican law are artificially evaded, provided that the court determines the fraudulent intention of such evasion; and

  • when the provisions of foreign law or the result of their application are contrary to fundamental principles or institutions of Mexican public policy.

[…]

Article 19

Civil litigation will be decided in accordance with the letter of the law or its legal interpretation. Absent such law, disputes will be decided in accordance with the general principles of law.

[…]

Article 1593

A will made in a foreign country will produce legal effects in the Federal District, provided it has been executed in compliance with the laws of the place where it was made.

[…]

Article 2736

The existence, capacity to exercise rights and assume obligations, operation, transformation, dissolution, liquidation and merger of private foreign legal entities are governed by the law of their place of incorporation; that is, the law of the state where they were created, in compliance with its substantive and procedural requirements.

Under no circumstances may the recognition of capacity to a foreign entity exceed the capacity granted to it by the law under which it was created.

Where a foreign private entity acts through a local representative, such representative or its substitute is authorized to respond to any and all claims and demands in legal proceedings against the foreign entity relating to any acts in dispute.

Federal Code of Civil Procedure2

[…]p. 3540

Article 23

Territorial jurisdiction may be prorogated by express or implied mutual consent of the parties.

There is implied prorogation:

  • When the plaintiff goes to court and files an action;

  • When the defendant responds to the complaint or when it raises a counterclaim against the plaintiff, and

  • When any of the interested parties desists from a certain jurisdiction.

Article 24

The [Mexican] courts with jurisdiction on territorial grounds are those:

  • Of the place that the defendant has designated to be judicially required for the performance of its obligation;

  • Of the place agreed [by the parties] for the performance of the obligation;

  • Of the place where immovable property is located, in the case of in rem actions or disputes derived from tenancies [of immovable property]. If property is located in or encompasses two or more territorial districts, jurisdiction shall correspond to the court that first hears the case;

  • Of the defendant’s domicile, in cases of in rem actions over movable property, in personam actions, collective actions, or civil status actions;

  • Of the debtor’s domicile, in bankruptcy cases.

  • The court indicated in this section also has jurisdiction in disputes against the bankrupt in which a judgment has not yet been issued at the time of filing the bankruptcy claim, and in disputes that, at that time, an enforceable judgment has already been issued if, in this last case, the judgment does not order to auction off seized properties, and is neither in course of enforcement with an executed seizure.

  • The gathering of the settled case shall only be made for the purposes of ranking the credit that, pursuant to the judgment, became uncontested;

  • Of the place where the deceased was domiciled at the time of his death, in inheritance proceedings; in the absence of that domicile, jurisdiction is granted to the court of the place of location of immovable hereditary property, in observance, when applicable, of the provisions of section III. In the absence of a domicile and immovable property, jurisdiction is assigned to the court of the place where the de cujus deceased.

The court with which this section deals also has jurisdiction to hear:

  • Petitions of inheritance;

  • Claims against the decedent’s estate, before the partition and distribution of property, and

  • Annulment, rescission and eviction of the partition of heirs.

  • Of the place where registration in the Public Registry of Property was made, when the only object of the action brought is ordering its cancellation;

  • In voluntary jurisdiction proceedings, unless otherwise provided by the law, the court that has jurisdiction is that of the domicile of the plaintiff; but if the case deals with immovable property, the court with jurisdiction is that of the place where that property is located, in observance, when applicable, of the provisions of section III. When, according to the preceding provisions, several courts have jurisdiction, the conflict of jurisdictions shall be settled in favor of the court that has first heard the case, and

  • In disputes in which the defendant is indigenous, the court with jurisdiction shall be that of the place where that person is domiciled. If both parties are indigenous, the court with jurisdiction shall be that of the plaintiff’s domicile.p. 3541

Article 25

For issues related to the guardianship of minors or incapable persons, jurisdiction is assigned to the courts of the minors or incapable persons’ place of residence.

Article 26

In cases dealing with the replacement of the consent of the person having parental authority, and in cases dealing with the impediments to marriage, the courts with jurisdiction are those of the place where the claimants have entered their claims.

Article 27

In cases dealing with the replacement of the marital authorization, and for hearing disputes on marriage annulment, the court with jurisdiction is that of the marital domicile.

The same court shall have jurisdiction for hearing divorce disputes, and for desertion, the court of the place where the abandoned spouse is domiciled.

[…]

Article 86

Only facts are subject to proof, as well as the usages or customs on which the law finds its grounds.

Article 86-bis

The courts shall apply foreign law in the manner that the judges or courts of the country whose law turns out to be applicable would apply it, notwithstanding that the parties could allege the existence and content of that foreign law.

In order to obtain information on the text, validity, meaning and scope of foreign law, the court may rely on official reports regarding those issues. The court may ask the Mexican Foreign Service to get them. In addition, the court may as well as order and admit any evidence that it considers necessary, or that is offered by the parties.

[…]

Article 568

National [Mexican] courts shall have exclusive jurisdiction to decide disputes concerning the following matters:

  • Lands and waters located within the national territory, including issues related to the subsoil, airspace, the territorial sea, and the continental shelf, whether this matters involve rights in rem, rights derived from concessions for use, exploration, exploitation, or tenancy of such property;

  • The resources of the exclusive economic zone or related to any sovereignty rights over that zone, according to the terms of the Federal Sea Act;

  • Official acts or acts related to the internal regulations of the state and those of the federation’s and federal entities’ agencies;

  • The internal regulations of Mexico’s embassies and consulates located in foreign territories, and their official actions; and

  • Any other cases in which other laws so provide.

  • […]p. 3542

Article 571

Judgments, private non-commercial arbitral awards and decisions of authorities that exercise some jurisdictional function, rendered abroad, may be enforced [in Mexico] if they fulfil the following requirements:

  • The judgment complies with the formalities provided in this Code for letters rogatory from abroad;

  • The judgment was not rendered as a consequence of an in rem action;

  • The rendering judge or court has had jurisdiction to hear and adjudicate the matter in accordance with internationally recognized rules compatible with the rules contained in this Code. The foreign rendering judge or court does not have jurisdiction when the parties to the legal acts from which the intended to enforce resolution derives, contains an exclusive choice of forum clause in favour of the Mexican courts;

  • The defendant has been personally summoned or subpoenaed, so that he was awarded the opportunity to appear in court and exercise its defenses;

  • The judgment has a conclusive character (res judicata) in the country where it was rendered, or no appeal may be pending against it in that country;

  • The action that gave rise to the judgment is not subject of litigation pending between the same parties before Mexican courts, in a matter in which the Mexican court has been the first to hear the case, or at least the letter rogatory to serve process was processed and submitted to the Secretariat of Foreign Relations or to the authorities of the State where the subpoena is to be made. The same rule shall apply when a conclusive judgment has been issued;

  • The obligation for the performance of which proceedings were initiated is not contrary to Mexican public policy;

  • The judgment fulfills the requirements to be deemed authentic.

Notwithstanding the compliance with the foregoing conditions, the court may deny the enforcement if it would be established that, in the country of origin of the judgment, foreign judgments or awards are not enforced in analogous cases.

Code of Civil Procedure for the Federal District3

[…]

Article 151

When jurisdiction may be waived, the court with jurisdiction is that to which the parties have expressly or impliedly subjected themselves.

Article 152

There is express submission [choice of forum] when the parties clearly and strictly waive the forum granted by the law, and subject themselves to the jurisdiction of the judge of the corresponding field who is on duty.

Article 153

Are meant to have impliedly subjected themselves to a certain court:

  • p. 3543The plaintiff, when he goes to the court on duty and files an action;

  • The defendant, when he responds to the complaint or when it raises a counterclaim against the plaintiff;

  • The party that, having supported a certain jurisdiction, desists from it.

  • The opponent third party and anyone else that for any reason takes part in the proceedings.

[…]

Article 156

The [Mexican] court with jurisdiction is that:

  • Of the place that the debtor has designated to be judicially required for payment;

  • Of the place agreed in the contract [by the parties] for the performance of the obligation. In this case, as well as in the previous case, jurisdiction extends not only to the contract’s performance, but also to its termination or nullity;

  • Of the place where immovable property is located, if an in rem action over immovable property is filed. The same criterion shall be observed for disputes derived from tenancies of immovable property;

  • Of the defendant’s domicile, in cases of in rem actions over movable property, in personam actions, or civil status actions.

  • In case of a plurality of defendants whose domiciles are located in different jurisdictions, the court with jurisdiction to hear the dispute shall be the court in turn in the domicile chosen by the plaintiff;

  • Of the place of the last domicile of the deceased, in inheritance proceedings. In the absence of such domicile, the court of the place where immovable hereditary property is located. In the absence of a domicile and immovable property, the court of the place where the de cujus deceased. The same criteria shall be observed in cases of absence.

  • The court in whose territory an inheritance lawsuit was filed, is the one that has jurisdiction to hear:

    • Petitions of inheritance;

    • Claims against the decedent’s estate, before the partition and distribution of property;

    • Annulment, rescission and eviction of the partition of heirs.

  • Of the debtor’s domicile, in bankruptcy cases.

  • In voluntary jurisdiction proceedings, the court of the domicile of the plaintiff; but if the case deals with immovable property, the court with jurisdiction is that of the place where that property is located.

  • In issues related to the guardianship of minors and incapable persons, for the designation of the guardian, the court of the minors or incapable persons’ place of residence, and for other cases, the court of the guardian’s domicile.

  • In cases dealing with the replacement of the consent of the person having parental authority, or with the impediments to marriage, the court of the place where the claimants have entered their claims.

  • For hearing marriage disputes and cases on marriage annulment, the court with jurisdiction is that of the marital domicile;

  • For hearing divorce disputes, the court of the marital domicile. And in case of desertion, the court of the place where the abandoned spouse is domiciled.

  • In maintenance proceedings, the plaintiff may choose between the court of its own domicile and the court of the domicile of the defendant.

  • […]p. 3544

Article 606

Judgments, arbitral awards and decisions, rendered abroad, may be enforced [in Mexico] if they fulfil the following requirements:

  • The judgment complies with the formalities provided in the Federal Code of Civil Procedure for letters rogatory from abroad;

  • The judgment was not rendered as a consequence of an in rem action;

  • The rendering judge or court has had jurisdiction to hear and adjudicate the matter in accordance with internationally recognized rules compatible with the rules contained in this Code or in the Federal Code of Civil Procedure;

  • The defendant has been personally summoned or subpoenaed, so that he was awarded the opportunity to appear in court and exercise its defenses;

  • The judgment has a conclusive character (res judicata) in the country where it was rendered, or no appeal may be pending against it in that country;

  • The action that gave rise to the judgment is not subject of litigation pending between the same parties before Mexican courts, in a matter in which the Mexican court has been the first to hear the case, or at least the letter rogatory to serve process was processed and submitted to the Secretariat of Foreign Relations or to the authorities of the State where the subpoena is to be made. The same rule shall apply when a conclusive judgment has been issued;

  • The obligation for the performance of which proceedings were initiated is not contrary to Mexican public policy;

  • The judgment fulfills the requirements to be deemed authentic.

Notwithstanding the compliance with the foregoing conditions, the court may deny the enforcement if it would be established that, in the country of origin of the judgment, foreign judgments or awards are not enforced in analogous cases.

Unofficial translation by Prof. María Mercedes Albornoz, Centro de Investigación y Docencia Económicas, México, D.F. (Mexico).

Unofficial translation by Prof. María Mercedes Albornoz, Centro de Investigación y Docencia Económicas, México, D.F. (Mexico).

Unofficial translation by Prof. María Mercedes Albornoz, Centro de Investigación y Docencia Económicas, México, D.F. (Mexico).