The common law of Mexican law in Texas courts.

• Author: Soltero, Carlos R.

1. INTRODUCTION/SCOPE OF ARTICLE II. TEXAS ABOLISHED THE DISSIMILARITY DOCTRINE IN 1979, ALLOWING TEXAS COURTS TO APPLY MEXICAN LAW WHEN MEXICO HAS THE "MOST SIGNIFICANT" RELATIONSHIP TO THE LITIGATION A. Gutierrez Abolished the Dissimilarity Doctrine B. Gutierrez Abolished the Lex Loci Delicti Rule and Adopted the "Most Significant Relationship" Test C. FEDERAL COURTS WITH DIVERSITY JURISDICTION APPLY TEXAS LAW D. Some Choice of Law Problems for Texas Courts Applying Mexican Laws E. Arbitration and Alternative Dispute Resolution III. PROCEDURAL RULES IN APPLYING MEXICAN LAW IN TEXAS COURTS A. The Primary Rules B. The Types of Pleading and Proof C. Experts Are Subject to Daubert/Robinson and Other Challenges IV. SUBSTANTIVE MEXICAN LAW AS PART OF THE COMMON LAW OF TEXAS A. Personal Injury Cases 1. Mexican Tort Law Is More General Than Texas Law 2. Causation Issues 3. Particular Non-Negligence Tort Claims 4. Strict Liability Tort Claims 5. Damages Issues B. Commercial Disputes 1. Contract Law Generally 2. Collections, Debts, Notes 3. Contracts Violating Mexican Law C. Estate, Trust, and Family Law Issues D. Regulatory Laws, Tax Law, and Issues Including Investments and Property, and Intellectual Property E. Bankruptcy Issues F. Labor and Employment Law Issues G. Telecommunications Law Issues H. Criminal Law Issues V. CONCLUSION I. INTRODUCTION/SCOPE OF ARTICLE.

   A quarter of a century ago in 1979, the Texas Supreme Court abolished the "Dissimilarity Doctrine" in Texas and the lex loci delicti rule in choice of law determinations in its landmark watershed opinion, Gutierrez v. Collins. (1) Since that time, Texas courts have applied Mexican law to disputes filed in Texas. (2)

   Texas adopted the English common law and repealed certain Mexican laws in 1840. (3) As a common law jurisdiction, Texas courts follow precedent under the doctrine of stare decisis. (4) According to the United States Supreme Court, "stare decisis ... is a doctrine that demands respect in a society governed by the rule of law." (5) This article catalogues and summarizes prior cases, primarily--although not exclusively--Texas state law cases and federal cases from Texas, in which courts have determined Mexican law with regards to particular areas. This article does not attempt to judge whether any particular interpretation or application of Mexican law was correct, but only reports what the courts have written and the conclusions they have reached. In addition, this article, designed for use by practitioners, cites many law review articles, books, and other sources generated in the United States but interpreting or related to Mexican law. (6) This paper focuses primarily on Mexican civil, not criminal, laws. However, at least a handful of Texas cases have referenced Mexican criminal laws, and we have included a brief section on cases referencing criminal laws in Mexico. (7)

   As courts and many commentators have noted, the evolution of the global economy and the economic integration of North America make Mexican legal issues increasingly more likely to arise in U.S. courts, especially in the Southwest where states share a border with Mexico. (8) As one article notes, with an estimated 12 million U.S. citizens traveling to Mexico, if one in 10,000 suffers a tort, approximately 1,200 claims may be made in the United States. (9) The United States shares 2,000 miles of border with Mexico, of which 1,254 miles are along the Texas border. (10) Texas' geographic location makes Texas a jurisdiction with recurring Mexican law issues. (11)

   Practically, and contrary to the recent suggestion that litigation of Mexican law issues will proliferate in Texas courts, (12) in our judgment, many more disputes filed in Texas and governed by Mexican law will not be ultimately resolved in Texas courts because prior to the resolution of disputes on the merits, defendants will cite the applicability of Mexican law as a factor favoring dismissal under the forum non conveniens doctrine. (13) Gonzalez v. Chrysler Corp.'s discussion makes it a significant case, although certainly not the first case, to hold that Mexico is an adequate forum for forum non conveniens purposes. (14) In 2003, the Fifth Circuit followed and reaffirmed Gonzalez by affirming another forum non conveniens dismissal to Mexico. (15) The Fifth Circuit also stated that a "choice of law determination is a necessary part of [a forum non conveniens] dismissal." (16)

   Courts are understandably reluctant to engage in analyses of Mexican law that are likely to be complex and time-consuming, as opposed to a more straightforward forum non conveniens inquiry involving "well-established principles and a well-established body of American case law." (17) Even after the abolition of the Dissimilarity Doctrine (18) and notwithstanding the availability of treatises and other translated materials of Mexican law, (19) courts may still be reluctant to apply Mexican law because of the absence of readily available Mexican statutory and case law, problems inherent in a court applying laws the court is unfamiliar with, and the increased costs and length of trials due to the translation requirements. (20) Some opinions have also noted that Mexican courts are likely to understand Mexican law better than courts in the United States. (21) A forum non conveniens dismissal to Mexico (particularly in personal injury cases) may be outcome determinative because the lawsuit may not be economically viable in Mexico. (22)

2. TEXAS ABOLISHED THE DISSIMILARITY DOCTRINE IN 1979, ALLOWING TEXAS COURTS TO APPLY MEXICAN LAW WHEN MEXICO HAS THE "MOST SIGNIFICANT" RELATIONSHIP TO THE LITIGATION

   1. Gutierrez Abolished the Dissimilarity Doctrine

      For many years, Texas courts refused to apply Mexican laws based on the Dissimilarity Doctrine. The Dissimilarity Doctrine was a defense against the application of Mexican law based on

      notions of practicality, fairness, and public policy prevalent [at the time because a] paucity of translated material [Mexican statutes and judicial opinions] might lead to incorrect interpretations of Mexican law by Texas courts, which would be unfair to the parties. Finally, several features of the laws of Mexico were considered to be so dissimilar to the laws of this state that they should not be enforced. (23) In 1979, the Texas Supreme Court abolished the Dissimilarity Doctrine, and recognized the potential applicability of Mexican law in Texas state courts for torts occurring in Mexico and elsewhere. (24)

      The Texas Supreme Court in Gutierrez noted three dissimilarities which "were proven in the record before us and have been noted in most recent cases." (25) The three distinctions between Mexican law and Texas law the Texas Supreme Court cited, all involving damages issues, were: (1) limitation of damages statutes indexing a plaintiffs recovery to the prevailing wage rates set by Mexican labor law; (26) (2) that "Mexican law does not recognize pain and suffering as an element of damages, contrary to the laws of Texas and other jurisdictions in this country;" (27) and (3) that "Mexican law authorizes recovery for moral reparations which include injuries to a plaintiffs reputation, dignity, or honor." (28)

      This article analyzes how Texas courts and some other courts have interpreted Mexican law issues since Gutierrez.

   2. Gutierrez Abolished the Lex Loci Delicti Rule and Adopted the "Most Significant Relationship" Test

      Prior to Gutierrez, Texas followed the rule of lex loci delicti: "The law of the place where the cause of action arose, the lex loci delictus, must determine the nature of the cause of action, and the defenses, if any, available. The case asserted must stand or fall upon that law." (29) This approach was rejected in Gutierrez. (30) Instead, the Texas Supreme Court adopted an interest balancing approach to choice of law issues requiring a judicial determination as to which jurisdiction has the "most significant relationship" to the litigation. (31) This approach followed the national trend, and the methodology for determining the applicable substantive law is based on the Second Restatement of Conflict of Laws. (32) Subsequent cases confirm that, absent contractual agreement by a choice of law clause to the contrary, the Most Significant Relationship test applies in choice of law cases. (33)

      The general choice of law considerations under [section] 6 of the Restatement include:

      (a) the needs of the interstate and international systems,

      (b) the relevant policies of the forum,

      (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

      (d) the protection of justified expectations,

      (e) the basic policies underlying the particular field of law,

      (f) certainty, predictability, uniformity of result, and

      (g) ease in determination and application of the law to be applied. (34)

      The Second Restatement thus creates a rebuttable presumption that lex loci delicti applies, absent a more significant relationship by another (usually the forum) state. In cases involving two or more Texas residents in Mexico, Texas courts have found both Texas law and Mexican law controlling. (35)

      It is the quality, not the quantity of contacts, which is determinative. (36) Additionally, the directives of other Restatement provisions are particularly relevant. (37) The threshold point of inquiry in evaluating the contacts is the identification of the policies and governmental interests involved. (38) According to at least one commentator, there is a recent trend where Texas courts interpret the Most Significant Relationship test in ways that result in the application of Texas, not Mexican, law. (39)

   3. Federal Courts with Diversity Jurisdiction Apply Texas Law

      A federal court in Texas with diversity jurisdiction would apply Mexican law in the same manner as a Texas state court. (40)

   4. Some Choice of Law Problems for Texas Courts Applying Mexican Laws

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