Ulpianus

Amparo Trial

1840. Manuel Cresencio Rejon. Amparo Trial in new Constitution of the State of Yucatan

1847. Mariano Otero. A.T. into the Federal System in that year’s Constitutional Reform

Both Rejon and Otero are considered the Fathers of the Amparo Trial

Recently theà Supreme Court presented a project of reform for a new Amparo Trial. Congress is still considering it, but it is not on the immediate legislative agenda

Principles

1. Complainant’s request. An A.T. can be started only ex parte; not ex oficio A.T.’s (but simplified requirements for emergencies)
   

2. Personal and direct harm. Act of authority must affect complaiant’s Constitutional Rights. No personal and direct harmà A.T. is dismissed
   

3. Definitivity. Before A.T.à exhaust ordinary means of defense. But see exceptions (e.g., risk of deprivation of life, exile, infamous, cruel or unusual punishment, mutilation, torture or lashing)
4. Relativity. Amparo sentence only benefits the complainant. No general – erga omnes – effects. This is called the “Otero Formula.” Exception: jurisprudencia obligatoria
5. Strict right. Amparo requestà analyzed as submitted by complainant, and technical requirements go under strict scrutiny. Court is not allowed to emend complainant’s deficiencies.Exceptions where the court may amend:
1. Action based in a law that has been declared unconstitutional
2. Criminal cases
3. Agrarian law
4. Labor law
5. When complainant is a minor or incapable

Parties

• Complainant (Quejoso). Individual or corporation that is entitled to the Individual Guarantee violated by the claimed action of an authority

• Responsible Authority (Autoridad responsable). Federal, State or Municipal agency from any branch of gov’t who is accused by the complainant as the author, executor or author and executor of the claimed action

• Third affected (Tercero perjudicado). A person not the complainant, who could be affected if the latter wins the A.T. Not all A.T.s have a third affected as a party (e.g., no 3rd affected in A.T. vs. arrest warrant)

• Federal Prosecutor (Ministerio Público Federal). Role à to ask for the respect of the constitution

Claimed Act

Concrete act of authority that attacks a Constitutional Right. This act can be:• Positive: an action; a gov’t agent is doing something against complainant’s constitutional rights

• Negative: an omission; a gov’t agent isn’t doing something it should, therefore affecting complainant’s constitutional rights

Remember exceptions:

no A.T. vs. resolutions by: S.Ct., A.T. tribunals, Electoral and Political matters or Military orders given to Armed Forces members

Also, see ripeness and mootness issues

Indirect Amparo

Generally handled by a District Judge

(1)Against unconstitutional laws, treaties, decree or rules.

(2)Against actions of members of the Judicial Branch

(3)Against third non-parties

(4)Against laws or acts that restrict State sovereignty or interferes with Federal competence

Appeal against final decision in Indirect Amparo: Revisión

Direct Amparo

Direct Amparo can be requested against any final sentence or resolution that concludes a trial or trial-like proceeding

Difference from Indirect Amparoà Direct Amparo proceeds against final decisions that are otherwise res judicata

Only the highest courts handle Direct Amparos: Collegiate Circuit Court and Supreme Court

Unconstitutional laws and treaties can also be attacked through Direct Amparo

Generally, No Revisión in Direct Amparos

Stay Order

Court order that stops the execution or continuance of execution of the gov’t act

Granted at claimant’s request or ex officio in extraordinary cases

This order binds Responsible Authority to effectively cease and desist the execution of the Claimed Action as long as the Stay order is in force

Stay order unavailable in some cases (e.g., no stay order to keep a prostitution house open)

Complainant must give a bond for the possible damages to Third Affected if Amparo is denied. Third Affected can then give a bond – a counter-bond?, and Stay order will be revoked. This is good business for bondmen!

No bond is required in criminal cases, but different requisites are imposed. And Stay Order does not impede the arrest against most serious crimes like murder, rape, drug traffic, et cetera.

Violation of a stay order is a Federal Crime

Final Resolution

Amparo can be granted or denied, depending on whether the complainant proved or not that Claimed Act violated her Constitutional Rights

When granted, Court can remand, modify ex novo or cancel the Claimed Act

In Indirect Amparo, this sentence can be appealed through Revisión

A.T. does not seek economical compensation, but Substitute Execution allows to liquidate damages when execution is impossible or affects the social interest

Conclusions

• The Amparo is a federal trial

• Its goal is to reinstate the claimant in the same position as she was before the violation of her constitutional right

• It does not seek monetary compensation, but $ can be granted in exceptional cases. Who pays? The gov’t

• Bind authorities to the observance of Human Rights

• It is an effective means to prevent and stop abuse of discretion by authorities, and a working protection for Human Rights

• This is a slight view of this Institution. Amparo Trial is vast, very technical, specialized and elaborated

• It is Mexico’s best tool to protect the people from governmental abusive actions

posted by Mastropiero @ 10:39 AM 0 comments

Professional Liability for Arbitrators and Mediators

There are many ways to hold a person accountable for their actions: if a friend makes an inappropriate and offensive comment, the friendship can be terminated; if an elected official behaves in an unacceptable manner, their constituents may not re-elect him; if an individual kills, they will be tried in a court of law; if a lawyer fails to comply with the ethical obligations attached to their profession, their bar may sanction them.

We all are accountable at different levels and manners. Of course, being our society imperfect by nature, not everybody is indeed held accountable: criminals at large could never pay for their crimes; debtors may never pay their creditors; infidelity would not be discovered. Another common way to held people and corporations accountable for their damages is through civil law suits. The courts provide a natural channel to traduce accountability in a sum of money.

But the rational tendency is towards accountability. This topic is often associated to the concept of democracy itself.[2] This paper focuses in two activities left outside the scope of the scrutiny of their participants: arbitration and mediation.

Arbitrators and mediators are not usually held accountable for their actions, and therefore avoid being liable.

Part I summarizes an article of Michael Moffit dealing with the issue of immunity arbitrators. Part II summarizes an article of Maureen A. Weston about suing mediators.

I

Associate professor Maureen A. Weston wrote an article about the immunity arbitrators have.[3] Assistant professor Michael Moffitt opined about the liability mediators should have as well.[4] A summary of both articles is given in this part of the paper.

Mr. Weston’s article, Reexamining Arbitral Immunity in an Age of Mandatory and Professional Arbitration,[5] questions why arbitrators and the institutions that provide for arbitration are assumed to be immune per se from civil liability.

He sets the scenario, where arbitral immunity seems to continuing ruling in the near future. Mr. Weston acknowledges the existing federal policy favoring arbitration, and highlights that parallel to this policy, there is a lack of regulation of in the different states on arbitration. And the future does not seem to be harder for the liability of arbitrators: the Revised Uniform Arbitration Act of 2000 proposes broad immunities from civil liability for arbitrators to the same extent than judges.

Arbitral immunity derivates from the application of judicial immunity. Judicial immunity originated in English as a common law doctrine to protect the tasks of the judiciary. But even judicial immunity has its exceptions.[6]

The doctrine of judicial immunity was extended to protect administrative law judges and prosecutors. The reason to grant them this immunity is because the functionality of their office is “quasi-judicial”.[7]

Then the judicial immunity doctrine was applied to arbitrators, because the functions of arbitrators were found to be similar as those of the public judges. Arbitral immunity was applied in contemporary arbitration since the 1990s. For similar reasons, immunity was granted to some regulated institutions that provided arbitration.[8]

But Weston challenges arbitral immunity, taking into account how arbitration has commercialized in recent years. The differences between the judges and arbitrators in modern times, makes the analogy unworkable.

The adjudication proceedings of an arbitrator and a judge are significantly different: judges and magistrates are accountable for their actions; arbitrators are not. Judge’s powers derive from the mandate of the People; arbitrators from a private contract.

The author of the article proposes that the assumptions about arbitration that justified the grant of immunity are outdated: the policy favoring arbitration should also worry about integrity of the procedure; because arbitration is a lucrative career, people will continue to serve as arbitrators and assume the risk of liability –just as doctors, lawyers and architects do. And private provider institutions make a profit because of their businesses; therefore comparing them with the services of a court clerk is misleading.

Another fail that Weston finds that even though the arbitration industry has developed ethical guidelines and due process protocols, they are not enforceable in courts.

What Weston proposes is a balance where arbitrators are accountable for their actions; the author points out that no other profession is so immune. He offers three options of new regulation for arbitrator’s liability:

1. Keep the status quo, relying in self-regulation and good will of arbitrators, plus the natural forces of the market.[9]

2. Treat arbitration as any other professional activity: create a State bar of arbitrations, with oversight functions over arbitrators; and perhaps a “Better Arbitrators Bureau,”[10] and

3. Legislative enactment of statutes that provides qualified arbitral immunity, and effective and express remedy for arbitrator’s wrongdoings.

Maureen Weston concludes the article exalting the importance of accountability of arbitrators and providers institutions. Time has come, Weston says, to provide “meaningful recourse to individuals aggrieved by illegal conduct” of arbitrators.

II

Michael Moffit takes a similar path in his article Suing Mediators.[11] He points out how mediation is an exception to other professions regarding barriers to enter into practice, restrictions on practice methods and supervision.

The author of Suing Mediators explains why suing a mediator is difficult. His research produced no precedent in the official reporters of successful cases against mediators.

The principal factor for this is because liability is hard to establish: malpractice is difficult to prove because, being mediation a segmented occupation, there are no dry and cut professional standards or customary practice to compare with the actions of the individual mediator; even if there were an established standard, it would be difficult to evaluate the decisions a mediator makes. For those reasons, malpractice claims would be a complicated vehicle to establish liability.

Other tort-based actions such intentionally infliction of emotional distress, false imprisonment, tortiously interference with a party’s contractual rights or economic opportunity, or invasion of privacy. The hardness of establishing tortious liability in the preceding hypothesis lies in the fact that parties participate in mediation by their will. The mediator has no decision-making power. And the mediator is expected to pressure the parties toward settlement.

Claims for breach of contract obligations are equally hard to succeed. Mediation contracts usually provide few or no description at all of the obligations of the mediator. The broad language used in the provisions of the mediation contract are, usually more principles of purpose than specific promises. Finally, some standardized mediation contracts contain liability waivers.

Fiduciary duties do not “regularly attach to mediators”, because mediators do not “handles a transaction for the benefit of” a party to the mediation. Mediators are not empowered by the parties to make decisions on their behalf.

Another possibility is to hold the mediator liable within the context of their particular profession’s scope. For example, if the mediator is an attorney, he or she may be subject to malpractice liability under the standards of the practice of law. Or if the mediator “engages in professional activity for which she is not appropriately licensed,” she could be sanctioned regardless of the quality of the mediation. But normally the actions of mediators do not constitute the practice of a separate profession.

Another factor that makes difficult to sue mediators is that because of the confidential character of mediations, there is not much point of comparison between adequate and unacceptable mediator’s behavior.

Last, sometimes law suits against mediators cannot proceed because they can be protected with civil immunity. Quasi-judicial immunity extends some times to mediators. In some jurisdictions where this kind of protection is not available, mediators are entitled to qualified immunity.

Additionally, not only suing mediators is difficult, but damages are difficult to demonstrate. Moffitt identifies four different kinds of injuries that can result from a mediator’s misconduct: non settlement as an injury –when mediator’s misconduct prevents the parties from settling; unfavorable settlement terms as injury –a party alleging that the settlement produced in the mediation is clearly disadvantageous to his or her interests-; settlement injuring non-parties -negative effects of settlement on a non-party to the mediation-; and injuries not reflected in the mediation outcome -compensable injuries not reflected in the settlement, such tortious mediator behavior.

The big challenge in demonstrating damages within the first two categories lies in the issue of causation: the parties have the ultimate power to settle, in the terms they consent to. Regarding the third category of possible damages, mediators owe duties to the parties, and they hardly extend to non-parties. Finally, the last type of damage presents the challenge of demonstrating a often highly speculative injury, especially when the parties have always the opportunity to walk out of the mediation proceedings.

Because establishing mediator liability is difficult and uncertain, there is a cost parties, mediators and the society have to pay. Part II of Moffitt’s article analyzes them. First, harmed victims remain uncompensated; second, because of a lack of court guidance, mediators face difficulties in discerning the boundaries of acceptable behavior; and finally, the public misses its opportunity to be educated through judicial decisions regarding acceptable and unacceptable mediator’s behavior.

In part III of his article, Michael Moffitt outlines how mediator liability should be set, taking into account the uniqueness of mediation. He starts by stating that mediation parties are best positioned to judge the effectiveness of mediator’s behaviors, even preferable over experts’ opinions.

According to Moffitt, parties can terminate the mediation if they are dissatisfied with the mediator conduct.[12] Besides, as an implication of party autonomy, each party decides if they accept or reject a particular settlement.

The author of the article suggests different liability treatment, correspondent to four different claims. The author distinguishes between “custom-based claims” –mediation misconduct referred to customary mediation practice, including claims relating with inadequate managing of the mediation proceedings- and “custom-independent claims” –claims that can be demonstrated by reference to different standards, such “contractual, statutory, constitutional or tort standards.”[13]

The first scenario, when a party that walked from the mediation -a mediation party that withdrew from the proceeding previous to its completion-, that party should be able to sue recover for professional malpractice; the mere fact of the withdrawing could evidence dissatisfaction with the mediator’s behavior. But a party suing under these circumstances should have a limited recovery, because by walking out of the mediation the party prevented the mediator from causing more damages.

Second scenario: custom-independent claims should be allowed when the party withdrew from the mediation. This type of claims should not be treated different than similar claims in any other context. The fact that the party walked away from the mediation should not limit recovery, as the termination of the mediation does not per se cure or prevent the injuries.

Our third scenario: a “[c]ustom-[b]ased [c]laim [w]hen the [p]arty [r]emained in the [m]ediation,” would have a very difficult time establishing liability, because that party, by staying in the mediation, was sending a message of approval. The exception to this difficulty would come if the party demonstrates that the negligence of the mediator was not evident at the time it occurred, she could not assess the negligence when it happened, or the mediator did not let the party to withdraw from the mediation.

In the fourth and last scenario, a custom-independent claim when the party stayed in the mediation should go ahead and let the party recover. The claim will allege the violation of a right “established outside of customary practice.” But recovery may be limited by the party’s decision to stay in the mediation when the conduct was readily visible, the party retained the ability to assess the action and to terminate the mediation, and termination would have prevented future injury.”[14]

After explaining these four scenarios for mediator liability, Moffitt brings two last issues: custom-independent claims against mediators should not be considered duplicative of malpractice claims –and therefore dismissed-, because it would put an “inappropriate burden on plaintiffs bringing claims against mediators.”[15]

The author’s last proposal is that mediators should not enjoy of immunity “against custom-independent claims.” The application of quasi-judicial immunity is inappropriate for mediators, because the tasks and responsibilities they have are not comparable to those of the judges. If any, the author says, qualified immunity for certain custom-based suits against mediators could be permitted.

posted by Mastropiero @ 9:11 PM 0 comments

TAKING SIDES ON THE LATIN AMERICAN REALITY OF TERRITORIALISM

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Big Trouble with Porsche

A good friend of mine (let’s call him Cazador[1]) wanted to buy a Porsche Cayenne because his wife’s Mini Cooper was not going to be helpful with the arrival of their first baby. After a good round of negotiations, he traded in the Mini and bought a V-8 Cayenne on credit.

A week later, Cazador got a call from the dealership: the bank they chose did not accept his credit application, and had to be retried. He went to the agency and signed a new application.

Two days passed when they asked Cazador to go back with them for a third credit application. He did it.

When Cazador received a phone call again from them a week later, he refused to go and sign yet another credit application. But he did go to the dealership for a carwash. When they cleaned the Cayenne, they refused to give it back to him, arguing that something was wrong with the engine. Instead, they gave him a rental car.

Another two weeks passed. My friend Cazador kept using the rental car they gave him at Porsche. Unable to reach an agreement, the salesperson from the dealership set an appointment with him. When he arrived, Porsche suggested him to buy a cheaper model: a V-6 instead of a V-8. He refused. Porsche told Cazador that they were not giving him his SUV back.

My friend offered to return the Cayenne –well, to sign the papers, because physically they were in possession of the SUV-, and Porsche would have to give the Mini back. But this was not possible, because it had been sold already. Cazador suggested them to sequester the Mini just as they had done with his Cayenne. Porsche obviously rejected the idea.

Porsche gave Cazador an ultimatum: he could either (1) buy a V-6 Cayenne-$20,000 cheaper- or, (2) sign the papers to return the V-8 Cayenne, and get a check for $3,000 for his Mini.

At this point, Cazador did not want to make any business with Porsche, so he rejected to get the V-6. He asked again to have his Mini back, since they were calling the deal quits. He could not reach any agreement, they refused to return him the Cayenne, asked for the rental car, and Cazador had to take a taxi to go home.

The next day, my friend called a number he found in the purchase agreement. He is not sure where he called. All he knows is that it is an Austin telephone number –maybe the Texas Attorney General’s office?-, and there he explained his story.

Two hours later, Cazador received an apologetic phone call from Porsche. They wanted to convince him to buy the V-6, but my friend refused once again. They asked him to go back to the dealership, and he did.

What happened there is hard to believe: he went there, resisted their tries to sell him a V-6, agreed on the fact that it was impossible to give him his Mini back, and Porsche consented to let Cazador keep his V-8 for the price of the V-6 model. That was the limit of the credit the bank had authorized after his third credit application: $20,000 less than the V-8 price.

Because my friend was tired of Porsche behavior, he did not sign the new credit with the bank Porsche did business. He instead chose his own bank’s representative, and obtained a lower APR.

Porsche ended up being the loser of the problem: they had to give up a great amount of money and, lost more than one client, because Cazador and his family are never going to do business with them.

As for Cazador, he got a great deal: a 2005 V-8 Porsche Cayenne for the price of a V-6 SUV.

posted by Mastropiero @ 6:00 PM 0 comments

What Could King Solomon Do if He would Use Modern Mediation Solutions?

posted by Mastropiero @ 10:05 PM 0 comments

Was King Solomon an Arbitrator or a Judge?

• The decision focused in the past and not in the future. Actually, no future was possible under the arrangement of King Solomon.
• The King looked at the parties’ positions and not at their needs. Each woman apparently wanted (needed) to keep the child to grow with them. The second woman’s cry ("He shall be neither mine nor yours; divide him!"[4]) was made after King Solomon suggested the partition; her original intention was to keep the child alive with her. Had Solomon focused on the parties’ need, he should never suggest the killing of the child. And he obviously did not focus on the child’s needs.
• Unable to solve the problem from its roots, King Solomon limited to apply justice, therefore creating iniquity.
• The solution presented a lose/lose scheme. Both women would lose under his arrangement.
• As if dividing common property, the King’s solution asked for the partition of the baby, frustrating the goals of dispute resolution. A creative parenting plan would be more effective, keeping the child alive and letting both women to share the joy of motherhood.

For all this reasons, King Solomon’s approach to resolve the dispute was more alike to those taken by judges in conventional dispute resolution procedures.

The fair ending of the story did not depend on his proposed solution, but in the desperate call of the real mother to keep the child alive.

Footnotes:
[1] I Kings 3: 16-28. The complete text is reproduced:
16Then two women who were harlots came to the king and stood before him.
17The one woman said, "Oh, my lord, this woman and I live in the same house; and I gave birth to a child while she was in the house.
18"It happened on the third day after I gave birth, that this woman also gave birth to a child, and we were together. There was no stranger with us in the house, only the two of us in the house.
19"This woman's son died in the night, because she lay on it.
20"So she arose in the middle of the night and took my son from beside me while your maidservant slept, and laid him in her bosom, and laid her dead son in my bosom.
21"When I rose in the morning to nurse my son, behold, he was dead; but when I looked at him carefully in the morning, behold, he was not my son, whom I had borne."
22Then the other woman said, "No! For the living one is my son, and the dead one is your son." But the first woman said, "No! For the dead one is your son, and the living one is my son." Thus they spoke before the king.
23Then the king said, "The one says, 'This is my son who is living, and your son is the dead one'; and the other says, 'No! For your son is the dead one, and my son is the living one.'"
24The king said, "Get me a sword." So they brought a sword before the king.
25The king said, "Divide the living child in two, and give half to the one and half to the other."
26Then the woman whose child was the living one spoke to the king, forshe was deeply stirred over her son and said, "Oh, my lord, give her the living child, and by no means kill him." But the other said, "He shall be neither mine nor yours; divide him!"
27Then the king said, "Give the first woman the living child, and by no means kill him. She is his mother."
28When all Israel heard of the judgment which the king had handed down, they feared the king, for they saw that the wisdom of God was in him to administer justice.
[2] Conventional Dispute Resolution mechanisms
[3] Alternative Dispute Resolution mechanisms
[4] I Kings 3: 26

posted by Mastropiero @ 9:55 PM 2 comments

The Mexican Ombudsman and the Human Rights National Commission

posted by Mastropiero @ 1:28 PM 0 comments

Getting Coca Cola on Their Knees

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Avoiding Probate the Colombian Way

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Arbitration as a Dispute Resolution Method for the NFL: The Terrell Owens Case

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Mission [Im]possible: Forming a Coalition Government in Germany

Looking at the legislative impasse my Country experienced during the last five years, with the first president from an opposition party –ending 70 years of hegemony of the PRI-, but with a Congress dominated by the old party, it is hard to imagine the negotiations needed in Germany to agree in a government for the country during the last elections held in September of this year.

His opponent, Conservative leader Angela Merkel, led her party to a narrow victory but fell short of winning the necessary majority in the German parliament to be inaugurated as Chancellor. Then all parties had to come up with a broad coalition to govern the Country.

Of course the parties were compelled to negotiate; otherwise they would not have a head of government. But despite the fact that it may be seen as the natural thing to do, having Germany a parliamentary system where the executive branch of government depends on the support of the parliament, the previous grand coalition happened forty years ago.

Merkel is going to be Germany’s first chancellor. But the making of the agreement to form the coalition lasted five weeks, so her designation will come with big concessions for all members of the coalition.

In theory, legislators from a parliamentary system should be better negotiators than their counterparts in a presidential system. But this is probably an overstatement, because they all carry their work according to the characteristics of each legal system.

And Mexican legislators have no excuse to simply block the proposals from the executive, when legislators in Germany were able to agree to designate a new chancellor.

posted by Mastropiero @ 1:26 PM 0 comments

How Can Having a Partisan Arbitrator Be Common Practice in the United States?

When Professor Sheppard[1] gave us a lecture about the great advance in arbitration ethics experimented in 2004, I was confused. The big change in ethics came through the 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes, specifically in the presumption of neutrality to all arbitrators, including party-appointed.[2] Before this revision, the Code of Ethics established a presumption of non-neutrality for party appointed arbitrators.

My confusion came because I assumed that arbitrators were supposed to be always neutral; but as Professor Sheppard explained, it was customary practice in domestic arbitrations for parties to appoint their arbitrators as partials advocates of their cases. This has never been the practice in international arbitration, nor in the jurisdiction where I previously practiced law.

Why would the Americans want to have non-neutral arbitrators in the first place? I understand a party’s desire for an advocate for their cause sitting in the arbitral tribunal, but if their counterparty had the same power and desire, this power is annulled. The work that a partial arbitrator for Party A does as a member of the arbitral tribunal, ends been nullified by the actions of Party B’s appointed arbitrator.

Arbitrators are similar to judges in that they settle disputes through binding decisions. But we could hardly imagine a three-judge panel where two of them were partial towards each party. That would be a mimic of justice, not justice. In my opinion as an outsider, I see the same situation applicable to arbitrators.

But the important point is that the Revision of the Code of Ethics gives the first step towards homogenization with international and foreign arbitration, establishing a presumption of neutrality for all arbitrators, including party-appointed.

The desirable next step will be a new revision –probably in the next decade- to mandate neutral arbitrators in all situations. But for now, the step taken is important enough to be proud of the development in domestic arbitration.

As Professor Sheppard said in his article, foreign colleagues would have to choose another topic to recriminate to their American counterparts.[3]

Footnotes:
[1] Ben H. Sheppard, Jr. is a Law Professor at the University of Houston Law Center and Partner at Vinson & Elkins LLP.
[2] Ben Sheppard, A New Era of Arbitrator Ethics for the United States: The 2004 Revision to the AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes, 21 Arb. Int’l 91 (2005).
[3] Id. at 97.

posted by Mastropiero @ 10:06 PM 0 comments

Importance of ADR in Hospitality Law

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