General Practice, Solo & Small Firm DivisionMagazine
Service of Process in Mexico
By Carlos G. Garcia-Lopez
The methods for service of process in Mexico are set forth in the Inter-American Convention on Letters Rogatory, Panama, 1975, and the Additional Protocol to the Inter-American Convention on Letters Rogatory, Montevideo, 1979.
Under the Inter-American Convention, each member state is required to establish a central authority to serve as receiving agent for service requests from other contracting countries. Litigants are required to use standardized forms for transmitting letters of request and returning the executed documents.
The Additional Protocol was adopted to clarify the procedures for transmitting letters of request and applies only to requests involving service of process, summonses, or subpoenas. Under the Additional Protocol, service of process is accomplished by the use of letters of request, which must be transmitted through the appropriate channels. To accomplish service, a party must prepare a letter of request on the required form.
The Inter-American Convention seeks to ensure that defendants sued in foreign jurisdictions receive actual and timely notice of suit; and it also facilitates proof of service abroad.
Letters rogatory should be executed in the state of destination after the consular or diplomatic agent has legalized them in the state of origin. Legalization is not required when the letters rogatory are transmitted through consular or diplomatic channels or through the central authority. Courts in border areas of the signatory countries also may directly execute the letters rogatory without the need for legalization.
Letters rogatory must be accompanied by the following documents, duly translated in the official language of the country of destination:
1. An authenticated copy of the complaint with its supporting documents, and other exhibits or rulings that serve as the basis for the measure requested.
2. Written information that identifies the entity suing, the time limits allowed the defendant to act upon the suit, and the consequences of a failure to act.
3. Where appropriate, information on the existence of the court-appointed defense counsel or of competent legal aid societies in the country of origin.
Procedure for Service
Under the Inter-American Convention and Additional Protocol, letters rogatory may be transmitted through diplomatic channels, by judicial authorities, or by the central authority each signatory country is required to designate. Once the central authority receives a request for service of documents from another signatory country, it must transmit the documents to the appropriate judicial or administrative authority for service pursuant to its local law.
In Mexico, once letters rogatory are delivered to the pertinent local court, the matter is assigned a file number similar to any case before the court. By law, the court has three days to review and assess the adequacy of the letters rogatory request, including its compliance with constitutional and other legal requirements.
Assuming the papers are in proper order, the court issues a written ruling approving the letters rogatory, otherwise known as a "homologación." The ruling is published in a local legal bulletin. An order is then issued instructing the court clerk to serve the letters rogatory papers, including the legal papers transmitted from the United States, by personal delivery to the defendant.
After the defendant is served, the clerk prepares and files with the court an affidavit attesting to the fact that service has been completed. The court then reviews the affidavit. If satisfied service was proper, the court prepares a ruling that indicates service has been accomplished in compliance with local law. It then orders that the letters rogatory, along with the pertinent orders, proof of service, and rulings, be returned to the issuing court in the United States.
If transmission is made through the central authority in Mexico, the central authority certifies that the letters rogatory have been executed; and the papers are returned to the central authority in the United States, which forwards them on to the appropriate court.
However, occasionally counsel is granted the authority to act on behalf of the central authority with respect to the transmittal of letters rogatory. In these cases, the papers may be transmitted directly to the U.S. court without the assistance of the central authority.
Even though there is no direct assistance in this regard in Mexico, unless it is provided by private law firms, the Mexican government, through the Ministry of Foreign Affairs Legal Department, provides some orientation assistance. For additional information, visit its website at www.sre.gob.mx.
Carlos G. Garcia-Lopez is an associate in the Mexico City office of Haynes and Boone. He has worked in Mexico, the United States, and the European Union. He is a member of the Corporate and International Law Section of the Mexican Bar Association and the International Bar Association.