Formalities As Part Of Due Process.

Differences between the arbitral venue and the jurisdictional venue

As of today, the Supreme Court of Justice (SCJN) has made various interpretations and analyzes of the content and scope of the right to due process; As a result, we now know that this right is contained in the broader right called effective judicial protection.

Therefore, it has been pointed out that due process in the judicial venue derives from article 14 of the Constitution and that in all jurisdictional proceedings, this right, comprises a hard core of essential formalities that together constitute the guarantee to a Fair Trial and that allow the governed to exercise their defenses before the authority definitively modifies their legal sphere through an act of deprivation of their freedoms or subjective rights.

These minimum or essential formalities contained in the guarantee to a Fair Trial are: i) the notification of the start of the procedure, ii) the opportunity to offer and vent evidence, iii) the opportunity to argue and iv) a resolution that solves the controversy.

As a result, these essential formalities of the procedure have been recognized by the SCJN as members of the hard core of the right to a Fair Trail. Thus, from Article 14 of the Constitution, it is stated that those essential formalities are expressly referred to as the jurisdictional processes followed in the form of a trial before authorities of the State, generally judicial authorities or those who exercise materially jurisdictional functions. This has been determined in Supreme Court precedents since these guarantees become relevant during the conduction of trials before state courts, identifying them as procedural guarantees, being its purpose to allow the entire exercise of defense, making it possible to perform the bare procedural acts.

Summarising what has been stated previously, the right to due process in court has been extensively studied and delimited in terms of its scope and content. However, it is important to take into consideration that the content and scope of this right in the arbitral venue can neither have the same content nor its application is identical to that performed in jurisdictional proceedings..

Hereof, the First Chamber of the SCJN has already ruled it in the revision of the Amparo proceeding 131/2009, indicating that arbitration is not a jurisdictional procedure, and the arbitrators are not state authorities with public power so the requirements applicable to public acts of authority cannot be demanded to them.

Additionally, the Supreme Court has established in various resolutions that arbitration supposes an act of will formalized and sanctioned by the law that, by the ministry of the law, is reinforced, for which reason its legal revision must be carried out in court in an exceptional manner.

We can affirm that the exercise of arbitrators is not governed directly by the guarantees of articles 14 and 16 of the Constitution in terms of formalities required in a jurisdictional procedure, just as the requirements of article 13 of the Constitution do not apply to the constitution of an arbitral tribunal. the federal constitution regarding the characterization of the special court.

Equally, the SCJN established in another precedent, that there is no room for the possibility of evaluating the validity of an arbitration award based on a parameter of constitutional regularity applicable to the jurisdictional function, such as the guarantees of substantiation and motivation, and therefore, in the same way, “the validity of the evaluation of the contested award as null is denied, using due process, understood as the type of formalities required of judicial authority.” Thus, the Supreme Court differentiated two aspects in the interpretation of the right to due process: i) that referring to the essential formalities of the procedure and ii) that in which only certain constitutionally protected substantive assets are provided for, such as: freedom, property, and possessions or rights.

Derived from this, the Supreme Court affirms that it does not dissociate due process from public order as a control parameter of arbitration, what it does deny indeed is that it should be understood on the basis of the same requirements applicable to State courts. Furthermore, due process must be characterized as an optimization mandate, whose degree of enforceability in each specific case must be set on the basis of the balance required by the requirements of the other principles in tension.

In conclusion, the doctrinal line of the SCJN in matters of commercial arbitration has tended to consider that due process and the legality of the arbitration procedure, including its final decision, are not directly governed by articles 14 and 16 of the Constitution that regulate acts of arbitration. authorities. This in no way means that due process should not prevail in commercial arbitration, but rather that it may not be identical, nor have the same formal requirements as the constitutional norm provides for the jurisdictional process before a state authority.

Hence, based on the analysis carried out by the Supreme Court, the principles and rights that govern the arbitration, in particular those related to the right to be heard through the exercise of defense, equal treatment, and, in general, due process arbitration, are not based on articles 14 and 16 of the Constitution or do not derive their content from them in order to demand in commercial arbitration guarantees of the so-called “procedural” or “legality”, identically to those required of the judicial seat. But rather the content and scope of the rights in the arbitration (regularity parameter) must be established in accordance with its own normative production, of an international and legal conventional nature, which governs the arbitration in question, optimizing those principles and rights in accordance with the values protected in said instruments, and in accordance with the very nature of arbitration as a private means of conflict resolution, different from state justice.

Joaquín Vega Martínez

Montserrat Abogado Martínez


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