The Common Law of Mexican Law in Texas Courts
Soltero, Carlos R., Clark-Meachum, Amy, Houston Journal of International Law
I. 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Texas adopted the English common law and repealed certain Mexican laws in 1840.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. …