Changes to Judicial Selection in Mexico Create a New Case for Contractual ADR Provisions
The Mexican Congress recently discussed and approved a Constitutional Amendment called the “Judiciary Amendment” which was ironically published in the Official Gazette on September 15, 2024, the day before Mexican Independence Day.
With this Judiciary Amendment, the Mexican Congress determined that Federal Judges, Federal Magisters and the Ministers of the Supreme Court will now be elected through direct and popular election. Before the Judiciary Amendment, Federal Judges and Magisters used to have a judicial career; many of them started as law clerks and were promoted step by step until becoming Judge or Magister.
Ministers of the Supreme Court were appointed by the Senate through an election of three candidates designated by the President.
How is this going to work?
The Senate will publish the guidelines for the elections with the numbers of charges to be fulfilled according to the Congress.
Each power will form an Evaluation Committee that will create a list of the 10 best evaluated candidates of each charge. (Remember there will be elections for Ministers of the Supreme Court, Magisters of Constitutional Tribunals and Federal Judges. So, there will be 10 candidates for each of them.)
The list of the 10 best evaluated candidates will be further reduced through random drawing. (Yes, a drawing). The reduced list will be sent to the Senate which will send it to the Election National Institute to proceed with the election process.
Campaigns will last 60 days. Candidates are not permitted to finance such campaigns, either with private resources, or with public funds.
Who can be Judge, Magister or Minister?
To be Judge or Magister, candidates must: (i) have been born in Mexico; (ii) have an Attorney License by the date of the publication of the election; (iii) have earned 8 points as a general average in law school and 9 in the topics related to the subject applied;[i] (iv) have practiced professionally for at least 3 years; (v) have a good reputation ( i.e., never served jail time); (vi) have lived in Mexico the last year of the call; (vii) not have been a public officer during the previous year to the election.
Candidates must submit a 3-page essay justifying why they should be elected, as well as 5 reference letters from their neighbors, educational institutions or any other people supporting their suitability.
Who will oversee the conduct of the Judges, Magisters and Ministers?
The conduct of the people serving on the judiciary will be overseen by a Tribunal consisting of 5 people elected directly by the population for a 6year period.
This Tribunal will have the responsibility of resolving complaints against the judicial officers submitted by third parties, and also to initiate complaints by themselves. The decisions of the Tribunal will be definitive and binding.
While the Judiciary Amendment does not seem to be the solution (but, rather, a step backward) when it comes to a well-functioning judicial system, Mexican companies (and foreign companies working in Mexico) may, as an alternative, include mediation or arbitration clauses in their contracts.
Mexico has seen a slow improvement in the use of institutional mediation which can preserve commercial relationships and avoid? further litigation.
At the beginning of this year the Alternative Dispute Resolution General Act was published to promote ADR (mainly mediation) in several areas of law (such as commercial and administrative law).
This law did not expressly adopt the UNCITRAL Mediation Rules which means there may be lack of clarity in how mediations in Mexico can be conducted. On the other hand, the Mexican Commercial Code had already adopted the UNCITRAL Arbitration Rules.
Given the uncertain effects of the Judiciary Amendment, it is critical to embrace alternative dispute resolution tools in construction contracts and start implementing Dispute Boards (and other ADR models that have been internationally proven) in the Construction Industry in Mexico.
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[i] In Mexico, the highest grade possible is a 10, making a score of 8 roughly equivalent to an 80% in the U.S. grading system, or a 3.0 GPA.
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Author Juan Pablo Sandoval is a Junior Partner at COMAD, S.C. in Mexico City, Mexico where he focuses his practice on construction law. Juan Pablo has experience across various sectors, including airport, railway, highway, tourism, hospital, oil, and energy projects. Juan Pablo can be contacted by email at jpsandoval@comad.com.mx.
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