Background
Main aspects of the law
Scope of the law
Comment
Following a constitutional amendment in 2011, the new Amparo Law came into force on April 3 2013. This new regulation aims to modernise amparo proceedings and includes several matters that were already recognised in case law, but not included in the previous law.
Among the most relevant features of this new law, constitutional protection has been extended in some ways and limited in others.
As part of the extension of constitutional protection, the new law establishes that an amparo proceeding may be initiated in cases where acts or omissions of the authorities violate a human right recognised in either the Constitution or any of the international treaties adopted by Mexico. In contrast, the previous law did not recognise that omissions of an authority could result in the violation of a human right; nor did it expressly recognise that an amparo proceeding could be initiated as a consequence of the violation of a human right included in an international treaty, but not in the Constitution.
The recently enacted amparo law also recognises that, with the exception of cases dealing with court resolutions issued in judicial, administrative, agrarian or labour matters, anyone with a legitimate interest has standing to initiate an amparo proceeding. This is a significant change, since the previous law provided that in order to initiate an amparo proceeding, the claimant had to have a legal interest in the subject of the proceeding (which meant that other legitimate interests were insufficient to initiate amparo proceedings).
Furthermore, in contrast to the previous law, two or more claimants may now initiate a collective amparo proceeding, as long as they can prove that all members of the collective have suffered a common impairment caused by the same authority, even if the act or omission that caused the impairment is not the same for each individual.
One of the main aspects of amparo proceedings is that they can be initiated only in cases where an act or omission of an authority affects either a natural person or a legal entity. In this respect, the definition of 'authority' is essential for determining whether an amparo proceeding can be brought. The new Amparo Law broadens this definition by recognising that any individual that undertakes acts or omissions as an authority which affect a person's human rights, and whose role is established in a general law, may be considered an authority for the purposes of initiating an amparo proceeding. However, this definition of 'authority' may raise the question, for some practitioners and judges, of whether the rulings rendered by an arbitral tribunal may be subject to challenge in amparo proceedings.
Another substantial change in the amparo regulation is that in cases where a law is held unconstitutional in two different court decisions, the Supreme Court may request the issuer of the law to modify the provisions that are deemed unconstitutional; if the issuer does not modify the law within a 90-day timeframe, the Supreme Court may suspend the application of the unconstitutional law or provision. This latter point is a significant change, since before this new regulation came into force, the effects of an amparo ruling could benefit only the person that initiated the proceeding; with the new law, the entire population may now benefit.
Finally, the constitutional protection of amparo proceedings is limited for some legal entities, since the circumstances in which the suspension of the offending act of the relevant authority may not be granted have been broadened (for further details please see "The new Amparo Law and its impact on companies"). Under the new law, financial institutions, companies that own gambling or lottery establishments and companies with a concession of any government property are generally prevented from requesting the suspension of the authority's offending act.
Although the new law is now in force, amparo proceedings that were initiated before the law came into force will continue to be governed by the previous statute until a final ruling has been rendered. Apart from such cases, the previous law is now repealed.
Given the substantial changes that were introduced by this new law, it will undoubtedly garner further attention as these novel amendments to the amparo regime begin to take shape and the courts grapple with the many legal questions that will arise under the statute.
For further information on this topic please contact Luis Enrique Graham or Angelica Huacuja at Chadbourne & Parke by telephone (+52 55 3000 0600), fax (+52 55 3000 0698) or email ([email protected] or [email protected]).
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