Before 2014 and derived from the protection trials in review (called “Amparo en Revisión” in Mexico) 131/2009 and 755/2011, the consideration of the Supreme Court of Justice of the Nation (SCJN) regarding arbitration was that people had the right to agree and resolve their disputes through alternative means of conflict resolution as long as these do not involve issues of public order or that, being arbitrable, violate it accordingly.
However, this right was never recognized with constitutional hierarchy, but was considered as an infra-constitutional figure, of civil law and contractual nature. This derives from the fact that article 17 of the Constitution does not provide for a State monopoly in the administration of justice, and therefore the legislator could determine the conditions under which individuals could opt for arbitration, as a mechanism for out-of-court dispute resolution (negative interpretation).
In this, the SCJN had not considered that arbitration had a constitutional hierarchy, since its origin was found directly in the federal law that regulated it (Código de Comercio).
Later, by virtue of the reforms of June 2008 and June 2011 to the Constitution that modified the constitutional architecture in relation to alternative means of dispute resolution, the SCJN seems necessary to update, through the considering raised in the judgment of “Amparo Directo 71/2014”, the old interpretation criteria on the legal nature of arbitration and the legal basis of contractual freedom that gives rise to it in the Mexican legal system.
In the “Amparo Directo” referred to above, the complainant demanded the annulment of an arbitration award under article 1457 of the Commercial Code, for which it was necessary to analyze at first the fairness of the arbitration awards to establish the general criteria according to which Arbitration awards must be submitted for review.
For this, the First Chamber recognized that after the constitutional reform published on June 18, 2008 in the Official Gazette of the Federation, to the fourth paragraph of article 17, the Constitution established a mandate for the legislator to establish and regulate alternative mechanisms of dispute resolution.
In its analysis, the SCJN did not address or discuss whether the possibility of people resorting to an alternative means of dispute resolution is a human right, but it did conclude that it is a constitutionally protected interest. Therefore, since arbitration is an “alternative dispute resolution mechanism”, this is now a figure with relevance and constitutional protection, but which continues to find its origin in the law that regulates it.
Consequently, the new constitutional structure establishes a positive duty towards the authorities regarding the freedom of the parties to resort to arbitration, since said freedom must be promoted, respected, protected and guaranteed by all the authorities of the Mexican State.
The will of the parties to go to arbitration ceases to be a “waiver” of their subjective rights and the jurisdictional intervention of the State in a conflict, in order to submit it to commercial arbitration; to become the exercise of contractual freedom of constitutional interest, to achieve the solution of a dispute.
Therefore, being the arbitration award an arbitration resolution that resolves a conflict between two or more parties, it must be respected, promoted, protected and guaranteed by the State, only the latter can nullify it in the specific cases provided for by law.
Similarly, to date, and as a consequence of said constitutional reform and interpretation of the SCJN, the judicial authority, faced with reasonable doubt about the actualization of the jurisdiction of the court, should not prefer to rule in favor of the jurisdiction of the State. , that is, the existence of a pro actione principle in favor of state jurisdiction should not be assumed in advance.