Service of Process in Mexico: NOT by Certified Mail.

31 05 2011
No Mail

Service of process: NOT by mail in MX

Or as Associate Professor Charles B. Campbell (Faulkner University) says—writes—: doing it No Sirve (literally, “doesn’t work”).

One common daunting legal task for the U.S. practitioner is to have to serve process of a lawsuit in Mexico. The natural temptation for the American lawyer is to try to accomplish it by using certified mail or courier. But that is NOT a valid method for Mexican law purposes.

Mexico and the United States are signatories to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly referred as the Hague Service Convention). This international treaty “allows service of judicial documents from one signatory state to another without use of consular and diplomatic channels,” in words of Wikipedia, but rather through the Central Authority designated by each signatory for that purpose.

The Hague Service Convention does provide for alternative methods for service of legal documents, but Mexico objected to them. Professor Campbell pointed out a mistranslation of the English courtesy copy of Mexico’s objection as the source of confusion for U.S. litigators in his January of 2010 paper “No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention.”

This year, Mexico changed  the language of his declaration to make its opposition to the alternative methods clearer. Professor Campbell reported it in a new article entitled “No Sirve Continued: Mexico Modifies Its Declarations to the Hague Service Convention.”

I personally always understood Mexico’s original objection as unequivocally rejecting the usage of alternate methods, but I of course read the Convention text in Spanish-my first language, so the fact actually strengths Professor Campbell’s point.

How to accomplish service of process then, if not by certified mail? Via Mexico’sSecretaría de Relaciones Exteriores (Ministry of Foreign Affairs). The Secretary of State has a link with information on the issue.

And practitioners: if your client was served with process in Mexico not via the central authority, oppose it.

Great articles by professor Campbell. Gracias, Maestro.

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One BIG Step Gets All Closer Toward Class Actions in Mexico

6 10 2010

 

SCtMX

The Suprema Corte de Justicia, Mexico's highest court and head of the Federal Judiciary. Federal courts would have exclusive jurisdiction for class actions in MX.

 

Special thanks to  good  friend & colleague Cecilia Ibarra  for bringing the topic to my attention


42 words. Congress in Mexico amended article 17 of the Federal Constitution (CPEUM, Constitución Política de los Estados Unidos Mexicanos) by adding just 42 words. But the — hopefully positive — impact can be enormous: it sets the stage for the introduction of class actions — denominated acciones colectivas or collective actions, per its literal translation — in federal courts of the country.

Class actions — or Collective actions are “lawsuit[s] filed by one or more people on behalf of themselves and a larger group of people “who are similarly situated,”” as defined by LAW.COM Dictionary.

The amendment, published in the Official Gazette (DOF, Diario Oficial de la Federación) on July 29, 2010, entered into force the day after, and gives Congress one year from the latter date to enact implementing legislation that make class actions practicable in Mexico. The added paragraph reads:

El Congreso de la Unión expedirá las leyes que regulen las acciones colectivas. Tales leyes determinarán las materias de aplicación, los procedimientos judiciales y los mecanismos de reparación del daño. Los jueces federales conocerán de forma exclusiva sobre estos procedimientos y mecanismos.

[Free translation: “Congress will pass laws regulating collective actions. Such laws will determine the subject–matter in which collective actions will apply, the court proceedings and mechanisms for payment of damages. Federal judges will have exclusive jurisdiction over this proceedings and mechanisms.”]

The constitutional amendment gives exclusive jurisdiction for class actions to the federal judiciary. Main reasons could be uniformity in the process, and the fact that the Federal Judiciary Branch has by far more resources than any or all of the local courts.

The practice of law in Mexico may change with a new niche. Lawyers in MX will probably turn to their North–of–the–Border colleagues for inspiration and example. Implementing legislation would probably touch on attorney’s fees and related issues; I would not be surprised if they even go to the detail of capping contingency fees.

A probable side effect of the change is that American courts may be more willing to dismiss a case before them based in forum non conveniens motions by defendants, now that Mexican courts would be able to offer an additional remedy that will be familiar to the U.S. judges — even though not applicable to the instant case entertained by the American court.

Success or failure of class actions in Mexico will depend in good measure on the amendments to the Federal Code of Civil Procedure and all secondary legislation by Congress. One of the main challenges for the Mexican judiciary on the issue will be to have an effective case management infrastructure to deal with class actions with potentially thousand of case members acting in a case.

New opportunities will come for plaintiffs and attorneys. We will keep an eye on it.

To think list:

  • Congress decided to vest exclusive jurisdiction for class actions in Mexico on Federal judges — presumably District Judges. States are purposely left out, probably for uniformity’s sake and better resources by the Federal Judiciary.
  • The practice of law in Mexico may change with a new practice niche.
  • Will MX Congress mirror US Class Action legislation when implementing the constitutional amendment? If so, which one?
  • One of the main challenges for the Mexican judiciary on the issue will be to have an effective case management infrastructure to deal with class actions with potentially thousand of case members acting in a case.




Duty of confidentiality and attorney–client privilege under attack in Mexico? We’ll see.

27 08 2010

Is the duty of confidentiality and attorney–client privilege under attack in Mexico by a new a new anti-money laundering bill soon to be introduced by Mexican President Felipe Calderon, as announced yesterday?

The initiative has been touted as a strong measure against organized crime, amidst the so-called Guerra al Narcotráfico (War on Drug Trafficking) started in 2006 by the federal government of Mexico. And the President probably is right in his core assumption that weakening the financial strength of the criminal organizations is fundamental. Per Constitutional mandate, the President, members of Congress and the state legislatures can introduce bills to reform federal laws with the Congreso of the Unión, Mexico’s bicameral federal legislative body.

The most visible component of the presidential initiative prohibits cash purchases of all real estate, and places a limit of $100,000 Mexican Pesos (approx. $7,700 US dollars) on such purchases of cars, planes and luxury items –traditionally associated with drug traffickers’ stereotype such as jewelry. Mexico already imposes a 2% tax on cash deposits into bank accounts after certain monthly limit.

Certain goods sellers and service providers would have a legal obligation to report suspicious activities – or “sensitive” activities (actividades sensibles), as called in the press conference – to the tax authority. Obvious addressees of the obligation to report are owners of car dealerships, financial agencies –which already had such duty, bulletproofing shops and jewelers. But apparently the obligation would also include CPAs and attorneys. Yes, lawyers. How about our duty of confidentiality and attorney-client privilege?

To be fair, the bill is still to be introduced to Congress – hopefully it would be made available to the public then – and still then, it would be only a proposal subject to Congress’ legislative powers. Once and if it is signed into law by Pres. Calderon after Congress approval, we will be able to see and analyze the reach of the measure towards the legal community.

And to put things in context, the so called War on Drugs presents unprecedented challenges to the Mexican government and State. Calderon himself is a good lawyer that

President Felipe Calderon announcing an anti-money laundering bill

graduated with honors from what is generally considered the best law school in Mexico. More to come as the topic progresses….