Constitutional Changes to Move Mexico Closer to Digital Justice

The business community should be aware that the Mexican legal system will see important changes in the coming months. Article 17 of the Mexican Constitution provides for the fundamental human right to have your day in court. In other words, any person has the right to appear before Mexican courts with the objective to receive speedy, impartial, complete, and free-of-charge judgments to decide their disputes. And the business community has the right to rely on an efficient court system that enforces the rule of law.

A few years ago, digital justice was more of an academic and futuristic aim. Who needed online courts if we were able to have an in-person and free-of-charge court system?  Notwithstanding, Article 31.22 of the USMCA, which replaced NAFTA as of July 2020, provides that the US, Canada, and Mexico are committed, to the extent possible, to fostering, easing and promoting — through education — online dispute resolution means, or ODRs. In other words, the USMCA seeks to implement ODRs to settle commercial disputes among the business communities of the three countries.

There was a little unexpected nudge for the use of ODRs. The pandemic brought substantial changes to the Mexican landscape. One primary change is that we realized that electronic filings, review of electronic dockets, use of electronic signatures, and holding virtual or remote hearings were feasible and quite effective. All these activities introduced important efficiencies. . The most evident are cost-saving measures due to the elimination of the use of paper, time-saving measures due to transportation to courts, carbon-zero emission policies by not using automobiles, more time for  law and court clerks to devote to more substantial activities, and, of course, preserving health-related measures in the courts.

In this context, Mexico’s House of Representatives is about to approve a constitutional amendment to its article 17 whereby the entire federal judiciary, all local courts of the Mexican Republic, the federal administrative courts, agrarian and labor courts, and federal and local electoral courts shall implement digital justice systems to offer online court systems and systems that will allow consultation and use of electronic dockets. The supplementary law will provide for those cases where in-person hearings will still be necessary. Once approved by the House of Representatives, it will need the approval of at least 17 state legislatures. If so, the Mexican legal system will become entirely digital. First and foremost, these amendments only are effective if there is an appropriate budget. Otherwise, it will be unsuccessful.

What does all this mean for the business community? It means a change of mindset. It will  be required to analyze whether companies and lawyers are prepared for the challenge.  It will require a new generation of judges, business persons, and attorneys who are up to the task of changing the traditional way of trying cases on paper and being able to rapidly adapt to the digital system. It is scary for those who were not born in the digital environment that will gradually transform traditional methods into a paperless mindset. A new generation of judges, lawyers, and business persons support electronic signatures or documents as equally valid as traditional paper. The understanding is that digital evidence will become the norm  when trying cases and will not be considered rocket science.

This constitutional amendment will transform the court system in Mexico and we all need to be prepared. It will require significant budgets, training, promotion, and a social pact not to leave behind old-fashioned lawyers, judges, universities, and business communities. If not properly implemented, the differences to access justice will be amplified. I am optimistic that if we are able to upskill and reskill the business and the legal community, we will transition as a country and be up to the task that will take us to the next level and insert us into the present and immediate future. The future is digital.

South Korea, Singapore, China, Estonia, Japan, US, Canada, and the European Union are well ahead in those systems, which they have tested and used for years. Some of those countries are in other stages of the enhancement of their legal systems not only by increasingly using ODRs but, importantly, on how artificial intelligence is easing court activities for research and eventually deciding cases that have low value or repetitive patterns. This amendment should not be overlooked since it means the overhaul of our entire Mexican legal system.