This article discusses the problem of the growing non-arbitrability of certain acts of Mexican state companies in public contracts and the elements contributing to this trend. Initially, the Supreme Court of Justice of the Nation (Suprema Corte de Justicia de la Nación) established a definition to consider certain acts by state companies as acts of authority in order to benefit the contractor with the constitutional injunction («amparo») against such acts of authority. However, turning an acta iure gestionis into an acta iure imperii makes it non-arbitrable, at least, as regards the question of its validity. In addition, a subordinate court recently held that an «amparo» judgment that did not nullify an act of administrative rescission, though a mere cassation resolution, had the effect of res judicata on an arbitral award, which resulted in the annulment of such an award. In this article, the author analyzes the elements of this rather explosive cocktail and proposes solutions to remedy the situation.
Iurgium [previously Spain Arbitration Review]