Foreign judgment creditors in a bankruptcy proceeding.

 Foreign judgments may be utilized in Mexico either: 1) as evidence, 2) as a binding resolution, or 3) as a resolution to be enforced. In the first case, the foreign resolution is utilized as evidence of facts but not of law, in the second as evidence of law (res judicata), and in the third as a resolution to be enforced.

The First Chamber of the Mexican Supreme Court stated that only in the third case, an exequatur proceeding is needed, while for the second case, a verification by the national court that the foreign judgment does not contravene public policy.[1]

Is the allowance of claims a resolution to be enforced in the bankruptcy proceeding? or merely a declarative resolution? The answer to this question will determine whether the holder of a foreign judgment needs to start an exequatur proceeding before submitting it as proof of claim.

A non-binding precedent from a High Civil Court of the Sixth Circuit states that the allowance of claims resolution is a resolution to be enforced and not only a mere declarative one.[2] Upon said precedent, on May 13, 2021, a District Court deemed that an exequatur proceeding is needed and did not allow a claim grounded on a foreign judgment. [3] The resolution of the District Court is not conclusive yet. The not allowed creditor may challenge it by an appeal and then through an Amparo trial.

For further information about bankruptcy law in Mexico, my work "Bankruptcy Law in Mexico", can be accessed at https://works.bepress.com/francisco-rodrigueznepote/4/, where it can be downloaded freely. A complete translation of the legal text can be found there, as well.

 

 


[1] Amparo en revisión 578/2016 Primera Sala de la Suprema Corte de Justicia de la Nación.

[2] Registro digital: 167167. Instancia: Tribunales Colegiados de Circuito. Novena Época. Materias(s): Civil. Tesis: VI.1o.C.126 C. Fuente: Semanario Judicial de la Federación y su Gaceta. Tomo XXIX, Mayo de 2009, página 1124. Tipo: Aislada

[3] Second District Court of Civil and Labor Affairs of Nuevo León case number 43/2020.

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