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18 June 2020
Since 11 March 2020 dispute resolution in Mexico has been significantly affected due to the COVID-19 crisis. The judicial branch's administrative bodies have suspended operations, which is noteworthy considering that judicial administration must be expedite ('expeditious') under the Constitution.
In such exceptional circumstances, alternative dispute resolution (ADR) has taken on greater importance, as it offers parties the chance to continue proceedings (with restrictions) as efficiently as possible without having to wait for the judicial branch to resume operations.
Arbitration is a common ADR method and is a particularly attractive option in the current context.
First, the institutions that manage arbitral proceedings (eg, the International Commerce Chamber (ICC)) are private and therefore unaffected by any operational restrictions imposed by the judicial branch. In other words, despite the government's decision to suspend administrative and judicial activities due to the COVID-19 pandemic, arbitral proceedings can continue unhindered.
Another advantage of arbitration is its flexibility, which allows parties to tailor proceedings to suit their needs and avoid the strict rules of a trial. For instance, parties can agree on the timeline of arbitral proceedings and evidence can be submitted and evaluated via videoconference, which allows cases to move forward and not be hampered by strict procedural rules such as those that govern judicial proceedings.
The adaptable nature of arbitral proceedings allows parties to better manage and resolve any conflicts that result from executing agreements. Unlike judicial proceedings, which rely on physical documents to be submitted to a specific location, arbitration permits parties to submit documents electronically, thereby improving the efficiency of dispute resolution.
On 9 April 2020 the ICC International Court of Arbitration issued the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic. The guidance note emphasised Article 24(3) of the ICC Arbitration Rules, under which an arbitral tribunal may adopt suitable legal measures or modify procedural schedules by a proceedings conduction conference or other means. Therefore, arbitral proceedings need not be suspended due to the COVID-19 crisis, as parties can use technological means to protect the continuity thereof.
The manner in which notifications are served during arbitral proceedings enables their continuity since, in contrast with judicial proceedings in which certain notifications must be served in person and which imply the presence of a court official, they can be served by any technological means available to the parties (eg, email) (Article 3(2) of the ICC Arbitration Rules). Arbitral proceedings are therefore immune to the government's suspended operations and the outdated formalities implemented in judicial proceedings. In this respect, the COVID-19 crisis has made the benefits of resolving disputes through arbitration rather than judicial proceedings even more pronounced.
For further information on this topic please contact Raúl Herrera Hazas at Becerril, Coca & Becerril SC by telephone (+52 55 5263 8730) or email (email@example.com). The Becerril, Coca & Becerril website can be accessed at www.bcb.com.mx.
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