|Enforcement of U.S. Judgments in Mexico: Illusion or Reality?
|Roger R. Evans
|Evans Kosut Davidson, PLLC
16000 Stuebner Airline Rd., Suite 200
Spring, Texas 77379
|This article was published in the Texas Bar Journal, February 2001, cited in West as 64 Tex. B.J. 139 and cited in Lexis as 64 Tex. B.J. 138|
|Copyright © 2001 Roger R. Evans
Unencumbered by recognized peculiar generosities [FN1] of the legal system in the United States, the authors of the Rome Treaty [FN2] had the good judgment and foresight to direct the member states of the European Economic Community to develop a framework for reciprocal recognition and enforcement of judgments. Their vision was rewarded with the Brussels Convention [FN3] and the Lugano Convention [FN4] which establish a uniform set of rules for ascertainment of jurisdiction and recognition and enforcement of judgments. [FN5]
The effort by the United States and its geographically closest trading partners, Canada and Mexico, to develop a regional agreement pursuant to which trading relations would be governed -- the North American Free Trade Agreement (NAFTA) [FN6] -- resulted in a treaty devoid of any similar provisions relating to recognition or enforcement of judgments. This omission was deliberate, reflecting a preference for recourse to alternative means to resolve disputes. To that purpose, the parties could rely on the fact that all were signatories to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. [FN7] Such an omission is significant when it is considered that trade flows between Mexico and the United States grew to $197 billion in 1998, and for the first six months of 2000 amounted to $118.9 billion. [FN8] The opportunities for disputes, as a result of such growth, are also clearly on the rise. [FN9]
Given the well-recognized belief that parties engaged in commercial activities benefit from a framework defined by predictability of outcomes in the event of a dispute, the importance of a mechanism which will give consistent effect to their intent and expectations is essential. Absent such a framework, meaningful planning and operating cost analyses which require an assessment of outcomes of litigation, particularly in transnational or crossborder commerce, become a matter of little more than speculation. [FN10]
Against this backdrop, the purpose of this analysis is to examine pertinent aspects of the U.S. and Mexican legal systems which relate to the enforcement in Mexico of judicial decisions of U.S. courts in order to ascertain the practical reality of such an endeavor. This effort consists of (1) a brief review of relevant historical data; (2) a case analysis to illustrate the need for a viable enforcement mechanism; (3) a discussion regarding specific requirements under Mexican law which must be satisfied in order to obtain enforcement of a U.S. judgment in Mexico; and (4) a conclusion which suggests that if Mexican enforcement of U.S. judgments is not a realistic possibility, the cause may lie more above the U.S.-Mexico border than not.
Relevant History and Structure
Induced by internal strife and rebellion, Mexico has, since 1821 when it achieved independence from Spain, enacted four political constitutions, discarding the first three and operating as a federal government since 1917 on the basis of the fourth. The Mexican federation consists of 31 local states and a federal district ("distrito federal"). Each state, as in the United States, is a sovereign within the federal structure. Each state has its own government divided into three branches: executive, legislative, and judicial. [FN11] The influence of the executive branch in Mexico in all aspects of Mexican governmental activity is such that even in what is otherwise to be a purely judicial function -- the enforcement of judgments -- the executive has a role. [FN12]
A marked transition has occurred in Mexico's philosophy of involvement as a participant in the development of international conventional law and in its level of activism in opening the country to the benefits and obligations accruing to that participation. This has affected the country's attitude toward the intrusive character of foreign claimants presenting judgments for execution against persons and property located in Mexico. [FN13] Stung by colonial encroachments, loss of territory, bellicose intrusions, and internal discord, Mexico's receptiveness to international liaisons, until recently, was best described as territorial and protectionist. [FN14] Prior to 1988, no enforcement of foreign judgments was possible in Mexico because there simply was no legal basis within the substantive or procedural laws of Mexico for enforcement of foreign judgments or meaningful analysis of international conflicts of law issues. [FN15]
Beginning in the 1970s, Mexico became more actively involved in international legal matters principally through its accession to a number of treaties. Among these were the Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments; [FN16] the Inter-American Convention on Proof of Information Regarding Foreign Law; [FN17] the Inter-American Convention on Letters Rogatory [FN18] and the amending Protocol thereto. [FN19] Intending to implement with regard to domestic observance of international treaties an effect similar to that embodied in Article VI of the U.S. Constitution, Article 133 of the Mexican Constitution states:
“This Constitution, the laws of the Union, which emanate therefrom, and all treaties in accordance therewith, made or to be made by the President of the Republic, with the approval of the Senate, shall be the Supreme law throughout the Union. The Judges of each state shall conform to the said Constitution, statutes and treaties, notwithstanding any provisions to the contrary that may exist in the Constitution or statutes of the States.” [FN20]
Entrusted with the interpretation of the Mexican Constitution are the federal courts of Mexico. [FN21] State courts exercise concurrent jurisdiction with the federal courts, and while their scope of activity is more limited, matters concerning enforcement of foreign judgments fall within the jurisdiction of both federal and state courts. "In cases regarding the enforcement of a foreign judgment, the Mexican competent court shall be the court of the domicile of the defendant (i.e.: domicilio del ejecutado) or, in its defect, the court of the location of the assets in the Republic of Mexico." [FN22]
Where recourse for enforcement of foreign judgments is sought in the federal courts of Mexico, the beginning point will be the federal civil district courts. Federal civil appellate courts are the only ones entitled to establish jurisprudence in all courts throughout the country and they act as the appeals courts from decisions of the local judiciary. [FN23] The general structure of the Mexican judiciary at both the state and federal levels is described as follows:
Supreme Court of Justice ("Suprema Corte de Justicia")
Collegiate Tribunals ("Tribunales Colegiados de Circuito")
Unitary Circuit Tribunals ("Tribunales Unitarios de Circuito")
District Courts ("Juzgados de Distrito") [FN24]
State Superior Court ("Tribunal Superior de Justicia del Estado")
Court of First Instance ("Juzgados de Primera Instancia")
Justice of the Peace Court ("Juzgados de Paz") [FN25]
The provisions of the 1988 Rules of the Federal Code of Civil Procedure govern the proceedings to enforce a foreign judgment whether in the federal courts or the state courts. [FN26]
The Problem Illustrated
NAFTA, as recognized above, has had a significant impact on cross-border trade between the United States and Mexico, precipitating an increase in the number of disputes between United States and Mexican private interests. Among these, a recent dispute which has found its way through the courts of both Mexico and the United States provides a reminder of the differing perspectives found in the courts of the United States and those in Mexico and serves to illustrate how ill-conceived judicial reasoning can have a chilling effect on enforcement in Mexico of U.S. judgments. The decision in Southwest Livestock and Trucking, Inc. et al. v. Reginaldo Ramon, [FN27] also strongly suggests the need for a bilateral accord permitting clarification of choice of law principles and emplacing consistently applied ground rules for enforcing each other's judgments. In the Southwest Livestock case, a Mexican citizen living in Mexico loaned substantial sums of money to the defendant, a U.S. entity, which loans were memorialized in "pagares," written Mexican promissory notes bearing interest under Mexican law in a range from 48 to 52 percent. [FN28] In 1994, Southwest Livestock defaulted and Ramon obtained a judgment in a Mexican court for the amount in default, with interest at 48 percent. This was appealed to the Mexican appellate court, which affirmed the lower court judgment.
Prior to entry of the Mexican judgment, Southwest Livestock filed suit in federal district court in Texas seeking damages based on the argument that the Mexican judgment violated the Texas usury law. [FN29] A motion for summary judgment was filed by Southwest Livestock predicated on that argument and on the basis that the Mexican judgment violated Texas public policy. Additionally, evidence of damages was presented to the district court. The court granted the motion for summary judgment and awarded $5,766,356.93 in damages along with post-judgment interest and attorney's fees. [FN30] Concluding that the Mexican court properly had jurisdiction of the matter, the district court magistrate still determined that "the district court would be well within its discretion in not recognizing the Mexican judgment on the grounds that it violates the public policy of the state of Texas." [FN31] The magistrate's determination was based on the fact that its choice of law analysis required the application of Texas law, [FN32] including its prohibitions against usurious interest.
On appeal to the Fifth Circuit Court of Appeals, Ramon argued that Mexican law should have applied because the "pagares" were payable in Mexico and because Mexico had the most significant relationship. In examining this question, the Fifth Circuit looked to the Texas Recognition Act, [FN33] which provides that a foreign country judgment assessing money damages must be recognized unless specific grounds for non-recognition are proven by the party asserting its application. [FN34] Holding that the basic claim asserted by Ramon was for collection of a promissory note, a claim not repugnant to Texas public policy, the court stated, "it is irrelevant that the Mexican judgment itself contravened Texas's public policy against usury." [FN35] The court observed that Ramon sought recognition of the Mexican judgment as an affirmative defense, not as an offensive allegation directed toward enforcement of a cause of action conferred by the laws of another state. [FN36] Noting, first, that no Texas cases "have invalidated a party choice of law on grounds ... of a foreign usury statute" which violates public policy, and second, that the borrowers were not unsophisticated, the court said, "we are especially reluctant to conclude that recognizing the Mexican judgment offends Texas public policy. ..." [FN37] Speculation is that the court's reasoning took into consideration the amicus brief filed on behalf of the United Mexican States and its discussion of the ramifications of a failure by the U.S. court to recognize the Mexican judgment. [FN38]
An interesting aspect of this holding, and of the Fifth Circuit's underlying rationale, is the contemplation of the effect which a contrary decision would have on those in Mexico who are in a position to have an influence on the outcome of a U.S. claimant's attempt to enforce a judgment of a U.S. court in Mexico. A Mexican national has loaned money to a U.S. business which has reneged on its promise to pay. Mexican courts, in the apparent legitimate application of their laws, have determined the borrower to be liable. Rather than being taken seriously in the United States, the Mexican lender finds that not only is he in possession of an unsatisfied judgment which the U.S. courts have refused to enforce, but also those same courts have determined that he is liable to his borrower for an amount roughly equivalent to four times that which he had sought to recover.
Allowing the district court decision to stand would have foreordained the unenforceability of similar claims for relief by U.S. interests requiring the courts of Mexico to enforce U.S.-based judgments. This is because the technical requirements contained in Mexico's Federal Code of Civil Procedure confer discretion on the courts in implementing provisions necessary to enforcement of foreign judgments. To the extent there is a bias in favor of local citizens in these actions, it can only be exacerbated by decisions such as that of the trial judge in Southwest Livestock. [FN39] And, turning to the specific requirements which must be met in order to obtain enforcement in Mexico, under the Mexican Federal Code of Civil Procedure either the fact of the conflicting public policies as described by the court or the circumstance of concurrent actions in Mexico and the U.S. would have served as a basis for refusal in Mexico to enforce the judgment of the U.S. district court. [FN40]
The Mechanisms for Enforcement
From 1975 to 1985, Mexico entered into eight separate international treaties and protocols [FN41] which comprise the basis for the provisions subsequently codified, by presidential decree, in (i) the Federal Civil Code for the Federal District and Territories in Ordinary Matters and for all the Republic in Federal Matters; [FN42] (ii) the Code of Civil Procedure of the Federal District; [FN43] and (iii) the Federal Code of Civil Procedure. [FN44] Since these changes were grounded in international treaties, the operation of Article 133 of the Mexican Constitution makes them binding on Mexican courts, state and federal.
Enactment in 1988 of the amendatory provisions of the three codes referred to above [FN45] was directed toward implementation of the new treaty regime; correcting inadequacies in the existing internal statutory construct; [FN46] recognition of a "Principle of Flexibility" in matters of international procedural cooperation; and recognition of a "Principle of Negative Reciprocity" which casts the question of whether there is reciprocal treatment of judgments in the originating country as a defensive issue, effectively imposing the burden of proof on the party challenging the judgment. [FN47]
The Requirements for Enforcement
Predicated on these mechanisms, in order to seek and obtain enforcement of a U.S. judgment in Mexico, certain requirements must be satisfied. [FN48] As to the view that these, in fact, are the necessary requirements, there is a consistency of opinion among those who have evaluated this question. [FN49] Prominent among the requirements is the "special judicial proceeding" required to confer upon a foreign judgment the necessary formalities under Mexican law "in order to be enforced -- that is, the proceeding of 'Exequatur' or 'Homologacion,' as it is known in Mexico." [FN50] Homologacion is the procedure for verifying that the requisite criteria for foreign judgment enforcement have been satisfied. This procedure is particularly rigid in Mexico and involves determinations of proper jurisdiction in the original court, compliance with the notice requirements of both jurisdictions, the character of the property interest at issue (real or personal), and the status of parallel litigation in Mexican courts. [FN51]
Key provisions of the Federal Code of Civil Procedure describing specific enforcement requirements and related procedural obligations (as translated from the original Spanish version and explained by Professor Vargas) are as follows:
The jurisdiction assumed by the foreign court shall be recognized in Mexico regarding the enforcement of a judgment, when said jurisdiction has been assumed by reasons resulting compatible or analogous with the national law, save in those cases which are the exclusive jurisdiction of the Mexican courts. [FN52]
The Mexican court is to recognize the jurisdiction of the foreign judge when s/he 'assumed said jurisdiction to avoid a denial of justice for the lack of a competent jurisdictional organ.' [FN53]
Judgments, private arbitral awards, and other foreign jurisdictional resolutions shall have validity and be recognized in the Republic of Mexico in everything which is not contrary to the internal public order in the terms established by this code and other applicable laws, save what is provided by the treaties and conventions to which Mexico is a party. [FN54]
Article 571 lists several requirements. Among them:
The judgments, private arbitral awards and jurisdictional resolutions rendered abroad may have 'executive effect' if they comply with the following conditions:
I. That the formalities provided for in this code regarding letters rogatory from abroad, have been satisfied.
Additionally: (i) the foreign judgment must not affect Mexican real property; (ii) the judge or sentencing court abroad must have had jurisdiction and the defendant must have been personally summoned or served in a manner assuring him/her 'a fair trial,' and the exercise of his/her defenses; (iii) the judgment must be a final judgment and if litigation concerning the same subject matter is ongoing in Mexico at the time a proceeding for enforcement is instituted, enforcement will be refused for that reason; (iv) judgments from abroad which are contrary to Mexican public policy or which do not comply with relevant substantive or procedural laws may not be enforced; and (v) in respect of the public policy limitation, if Mexican judgments, similar in character to the one which is seeking to be enforced, are not enforced in the county of origin, this lack of reciprocity, in the discretion of the Mexican court, can be a basis to refuse enforcement. [FN55]
Article 572 lists the type and form of documents which must accompany the letter rogatory from the court of the originating country. These are: (i) an authentic copy of the judgment; (ii) an authentic copy of the records proving proper service and that the judgment is final; (iii) Spanish translations of required documents; and (iv) indication that the defendant's domicile (or the location of its assets) is the same as that of the court to whom the letter rogatory is directed. [FN56] Article 574 requires that both parties, as well as the public prosecutor (a representative of the Executive branch), be served with notice of any hearing to consider the allegations and defenses presented. [FN57] In examining the foreign judgment, the court is limited by Article 575 to determinations of (i) authenticity of the foreign judgment and (ii) whether it should be enforced "in conformity with applicable Mexican laws." [FN58]
In terms of the predictability of outcomes in relation to enforcement of U.S. judgments in Mexico, commentaries by those familiar with the technical requirements of the Mexican enforcement regime and the related record of attempts to obtain enforcement through application of those requirements are not encouraging. [FN59] There is a clear difference of opinion among those who have chosen to study and write on the dynamics of foreign judgment enforcement in Mexico. Accumulated views range from the sanguine, "... Mexican procedural laws have established detailed requirements that, if complied with, guarantee the assistance of a Mexican court in enforcing the foreign money judgment." [FN60] to, "Even when each of these conditions are fully complied with, there is no guarantee the foreign judgment will be enforced." [FN61] And, it has been observed that, "A practitioner, frustrated with the exequatur procedure necessary to obtain recognition for a U.S. judgment in Mexico has declared U.S. judgments 'worthless' south of the border." [FN62]
While much has been written on the methodology of enforcement, research has disclosed no case studies, anecdotes, or other evidence that the Mexican code [FN63] provisions have been utilized successfully to obtain enforcement of a U.S. judgment in Mexico even though the code provisions have been in existence for 12 years. A relatively prolific writer on this subject, Professor Vargas, in 1997, conducted a survey of prominent law firms in the United States and Mexico inquiring into their experience in enforcing judgments in Mexico. [FN64] He found that "none had ever enforced any judgment whatsoever in Mexico." [FN65]
In light of this, it is worth recalling that one of the objectives of the 1988 additions to Mexico's statutory framework was to cause Mexico's judges and lawyers to become more knowledgeable of international law, particularly given the spate of treaties to which Mexico had become a party. Mexico's dual undertakings -- recognition of a need to educate its judges and lawyers on the effects of Mexico's international commitments, and implementation of an international enforcement of judgments regime -- raise an interesting question as to the degree to which uncertainties encountered in Mexico by U.S. individuals and entities seeking to enforce their U.S.-based judgments are traceable to a lack of knowledge of international law and inadequate cultural sophistication north of the border. Decisions such as that of the U.S. district court in Southwest Livestock suggest this as a possibility. It also hints at the fact that the recognition of the need of Mexico's lawyers and judges for a better understanding of international law and how it integrates into domestic legal activities is a recognition which, if made here in the United States, might be a significant step in obtaining predictable enforcement of our judgments in Mexico.
The basic structure for enforcement in Mexico of U.S. judgments is in place. It is real. Hopefully, greater awareness among practitioners north of the border and the fulfillment of President-elect Vicente Fox's pronouncements regarding changes to the Mexican judiciary will result in the predictability of outcomes so important to crossborder business relations.
[FNa1]. Roger R. Evans is a shareholder in the Houston law firm of Evans & Kosut, P.C. He received his J.D. and LL.M. (the latter in International Law) from The University of Texas School of Law. His email address is email@example.com
[FN1]. The prevailing view outside the United States is that its system which permits recovery for pain and suffering, punitive and treble damages based on jury determinations is excessive. Exposure to such excesses "can strike terror into the heart of a foreign Justice Ministry." Matthew H. Adler, Enforcement in a New Age: Judgments in the United States and Mexico, 5 U.S. Mex. L.J. 149 (1997).
[FN2]. Treaty Establishing the European Economic Community (EEC Treaty), Mar. 25, 1957, art. 220 U.N.T.S. 11.
[FN3]. Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 1972 O.J. (L299) 32, reprinted in 29 I.L.M. 1417 (the "Brussels Convention").
[FN4]. Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 1988 O.J. (L319) 9, reprinted in 28 I.L.M. 620 (the "Lugano Convention").
[FN5]. Ronald A. Brand, "Enforcement of Judgments in the United States and Europe," Jour. of L. & Comm. 193 (1994).
[FN6]. See Russell J. Weintraub, "Recognition and Enforcement of Judgments and Child Support Obligations in United States and Canadian Courts," 34 Tex. Int'l. L. J. 361 (1999).
[FN7]. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 2519, 330 U.N.T.S. 38; 9 U.S.C. 201. See also the Inter-American Convention on International Commercial Arbitration, to which Mexico and the United States are signatories. 9 U.S.C. 301.
[FN8]. In 1998, bilateral trade between the United States and Mexico surpassed that which the United States has with Japan, making Mexico now second only to Canada in trading activities. See report of Secretariat of Foreign Affairs of Mexico (1999) at 4. See also "Mexico-U.S. Trade Keeps Growing," Aug. 18, 2000, www.naftaworks.org/papers/2000/bo10099.htm.
[FN9]. It has recently been reported that disputes between United States and Mexican private concerns include lawsuits by California residents against Grupo Financiero Bancomer over beachfront properties; NBC-TV against Televisíon Azteca and Banco Serfin; Metalclad Corp. against the Mexican government; and individual borrowers and lenders. "Seeking Justice -- But Whose?" U.S./Mexico Business, March 1998 at 10.
[FN10]. Put more succinctly, "What does it bode for the future? ... If you can't be sure what you've got if you have a judgment from Texas or Mexico, and if you can't rely on the judicial system for decisions, because they're not recognized in the other country; then you've got nothing left. Business people rely on the courts to resolve disputes." T. Mark Blakemore, as quoted in Id. at 10.
[FN11]. See G. Teutli-Otero, Course Materials, Mexican Public Law, University of Texas School of Law, Fall 1999, at 13.
[FN12]. Hector Coronado-DeAnda, "One View of the Mexican Judicial System," October 1990.
[FN13]. The transition permitting attempts within Mexico to enforce judgments from other jurisdictions does not include, according to Articles 27 and 42 of the Mexican Constitution, and Art. 568 of the Federal Code of Civil Procedure of Mexico: "(1) ... cases involving lands and water located in Mexico's national territory; (2) marine resources in Mexico's 200-nautical mile exclusive economic zone; (3) acts of authority or pertaining to the internal regime of the Nation, including federal and state agencies; (4) the regime applicable to the Mexican embassies and consulates abroad, and their official functions; and (5) in the cases provided for other laws." Jorge A. Vargas, "Enforcement of Judgments in Mexico: The 1988 Rules of the Federal Code of Civil Procedure," 14 N.W. Int'l. L & Bus.376 (1994).
[FN14]. See G. Teutli-Otero, Course Materials supra note 11.
[FN15]. Jorge A. Vargas, "Enforcement of Judgments and Arbitral Awards in Mexico," 5 U.S. Mex. L.J. 140 (1997).
[FN16]. The Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments, May 24, 1984, 24 I.L.M. 468.
[FN17]. The Inter-American Convention on Proof of Information Regarding Foreign Law, May 8, 1979, 18 I.L.M. 1231.
[FN18]. The Inter-American Convention on Letters Rogatory, Jan. 30, 1975, 14 I.L.M. 339.
[FN19]. Additional Protocol to the Inter-American Convention on Letters Rogatory, May 8, 1979, 18 I.L.M. 1238.
[FN20]. Article 133, Mexican Political Constitution. (1917).
[FN21]. Article 94, Mexican Political Constitution (1917).
[FN22]. Translation of Federal Code of Civil Procedure, Art. 573.
[FN23]. See also G. Teutli-Otero supra note 11 at 9-10.
[FN26]. Jorge A. Vargas supra note 15.
[FN27]. Southwest Livestock & Trucking, Inc. v. Reginaldo Ramon, 169 F.3d 317 (5th Cir. 1999).
[FN28]. Id. at 319.
[FN32]. The Texas Uniform Foreign Country Money-Judgment Recognition Act, Tex. Civ. Prac. & Rem. Code Ann. § 36.001 et. seq. (West 1997, Supp. 2000) (herein the "Texas Recognition Act").
[FN34]. See Vernon's Tex. Civ. Stat. art. 5069-1C.001. See also Tex. Cons't. art. XVI, § 11. Both define the limits of usury in Texas.
[FN35]. Southwest Trucking, 169 F.3d at 321.
[FN36]. Id. at 323.
[FN38]. See Amicus Curiae Brief of the Govt. of the United Mexican States in Support of the Defendant-Appellant at 11, Southwest Livestock & Trucking, Inc. v. Reginaldo Ramon, 5th Cir. (98-50303), discussed in comment by David Henry, "Run From the Border: The Need For Recognition of Foreign-Commercial Judgments in Texas Courts," 31 Tex. Tech L. Rev. 211 (2000).
[FN39]. The tempering effect of the decision of the Fifth Circuit Court of Appeals does not escape recognition here. The significance of the lower court's decision, doubtless, does not exist in isolation.
[FN40]. See Federal Code of Civil Procedure, § 571 (concurrent proceeding in originating jurisdiction); and Civil Code of the Federal District, §§ 131-132 (failure by courts of originating jurisdiction to enforce similar Mexican judgments).
[FN41]. See supra notes 16 through 19 for relevant treaty sources.
[FN42]. Codigo Civil Para el Distrito y Territorios Federales en Materia Comun.
[FN43]. Codigo de Procedimientos Civiles Para el Distrito Federal.
[FN44]. Codigo de Procedimientos Civiles.
[FN45]. See Ryan Anderson, "Transnational Litigation Involving Mexican Parties," 25 St. Mary's L.J. 1059 (1994). These recent changes "represent an effort by the Mexican judicial system to compromise with foreign legal systems and demonstrate a commitment to the principles underlying the international judicial assistance conventions. In January 1988, the Official Gazette of the Mexican federal government published the changes to the Civil Code of the Federal District, to the Federal Code of Civil Procedure, and to the Code of Civil Procedure of the Federal District."
[FN46]. Id. at 385.
[FN48]. These requirements are set forth in the "Fourth Book" ("Libro Cuarto") of the Federal Code of Civil Procedure. "... the Federal Code of Civil Procedure has incorporated the new procedural provisions by adding a new book to the Code, while the local code of the federal district has been revised by amending several provisions within the code rather than adding a new book. Nevertheless, the contents of the reforms to both national and federal district procedural codes are identical."
[FN49]. None of the writers discussing the scope and application of the procedures for judgment enforcement in Mexico have indicated any uncertainty due to lack of clarity, ambiguity, or other shortcoming in code provisions. This may be due to the absence of any known instance where their application has been tested.
[FN50]. Id. at 386.
[FN51]. See Adler supra note 1 at 151.
[FN52]. Id. at 397. The matters falling within the "exclusive jurisdiction" of Mexican courts are those discussed at note 13 supra.
[FN53]. Id. at 398.
[FN54]. Id. at 399.
[FN55]. See supra note 13 at 385.
[FN59]. In addition to the opinions of those who have published on this topic, personal inquiries have uncovered no instances of U.S. judgments having been enforced in Mexico.
[FN60]. A question as to the meaning of the term "assistance" exists; does it mean the judgment will be enforced, or that the judge will assist to the extent of at least considering the matter, or does "assist" mean taking steps the ultimate effect of which is not to enforce?
[FN61]. Jorge A. Vargas, "Enforcement of Judgments and Arbitral Awards In Mexico," 5 U.S./Mex. L. J. 137, 147 (1997).
[FN62]. See Russell J. Weintraub, "How Substantial Is Our Need For a Judgments-Recognition Convention and What Should We Bargain Away To Get It?" 24 Brook. J. Int'l. L. 167 (1998) at note 101. See also David W. Kash, "Enforcement of Judgments Across the Border With Mexico," 31 Ariz. Atty. (July 1995) at 13, in which he observes, "A private judgment sought to be enforced internationally between Mexico and the United States may be worthless except in limited circumstances .... Until cooperative changes between the legal systems on both sides of the border take place, enforcing foreign judgments will remain risky business."
[FN63]. Here, the term "code provisions" is inclusive of the applicable substantive and procedural sections of the relevant Mexican codes.
[FN64]. See supra note 15.
[FN65]. Id. As a result, Professor Vargas concluded that his discussion was nothing more than "an academic analysis of the enforcement of the foreign judgment's section of the Federal Code of Civil Procedure."