Source: DLA Piper Mexico
The First Chamber of the Supreme Court of Justice of the Nation (First Chamber) resolved amparo directo en revisión 5069/2023 on February 19, 2025, in which a Spanish company claimed a lack of jurisdiction in Mexico based on an exclusive submission clause in its website user agreement. In its decision, the First Chamber established limits for exclusive submission to foreign jurisdiction in adhesion contracts entered into through electronic platforms, particularly when a foreign company provides services in Mexico.
In this alert, we discuss the background of the case and the implications of the First Chamber’s decision for future litigation on exclusive submission clauses.
Background
The case originated from a civil lawsuit for moral damages (and other claims) filed before the local courts of Mexico City against a foreign company, an operator of an online services portal, which alleged the lack of jurisdiction of the Mexican courts based on the clause of exclusive submission to the courts of Barcelona, Spain, contained in the terms and conditions of its website. The Eighth Civil Chamber of the Superior Court of Justice of Mexico City declared the lack of jurisdiction defense to be valid and dismissed the trial. Subsequently, the Ninth Collegiate Court in Civil Matters of the First Circuit denied the amparo requested by the claimant, validating the application of the submission clause.
The claimant argued that the company, although domiciled in Spain, carries out activities in Mexico and that the unrestricted application of the submission clause violates the right of access to justice, especially in the context of adhesion contracts and online consumer relations.
Criteria for the First Chamber’s decision
The First Chamber analyzed the constitutionality of Articles 149 and 151 of the Code of Civil Procedure for Mexico City, which allow the extension of territorial jurisdiction through express or tacit submission, as well as their application to online adhesion contracts.
The First Chamber recognized that, although the extension of jurisdiction by express submission, in principle, is valid, its application in adhesion contracts (where the terms are imposed unilaterally by the provider and the user lacks real negotiating capacity) may be disproportionate and contrary to the right of access to justice provided in Article 17 of the Mexican Constitution.
The First Chamber established some general guidelines to analyze the viability of an express submission clause, including: (i) the nature of the defendant company, the type of service it provides, and its means of conducting business; (ii) whether the clause is excessive or whether it is justified within the purposes and nature of the contract; (iii) whether the terms affect any of the parties or if it impedes Mexican jurisdiction; and (iv) if the conditions are imposed unilaterally.
The First Chamber determined that the submission clause was invalid based on the following criteria:
- The foreign company provides services in Mexico, has a commercial presence, or conducts business in the country.
- The company’s services materialized in Mexico and therefore fall under Mexican jurisdiction.
- The exclusive submission clause obliges the user to litigate abroad, which was considered to impose excessive economic and procedural burdens and generated procedural inequality that hindered effective access to jurisdiction.
The First Chamber emphasized that the acceptance of terms and conditions online, by itself, cannot be considered sufficient to waive national jurisdiction if it leads to a substantial impact on fundamental rights, such as access to justice and procedural equality.
The need to interpret procedural rules in accordance with international standards of consumer protection and human rights, in addition to the principles of equity and proportionality, were also highlighted. Finally, the decision of the First Chamber was limited to the analysis of the jurisdictional clauses and do not affect the use of alternative dispute resolution clauses, such as arbitration.
Outcome of the First Chamber’s decision
The First Chamber revoked the appealed judgment, declaring the adhesive appeal unfounded and ordering the records to be returned to the collegiate court of origin so that it could issue a new resolution in accordance with the guidelines established in the judgment.
This judgment formed the jurisprudence thesis 1ª./J. 93/2025 (11ª.), with digital registration number: 2030477.
Implications of the decision
This judgment reinforces the protection of Mexican consumers against clauses of exclusive submission to foreign jurisdiction in adhesion contracts entered into online, especially when the foreign company has a presence or carries out activities in Mexico. Companies or individuals that provide services in Mexico by digital means are encouraged to review their jurisdiction clauses to determine if they comply with the guidelines indicated by the First Chamber.
This Jurisprudence Thesis 93/2025 (11th). Approved by the First Chamber of this High Court in a private session held on May 28, 2025; was published on Friday, June 6, 2025, at 10:12 a.m. in the Federal Judicial Weekly, and is therefore considered mandatory as of Monday, June 9, 2025, for the purposes set forth in section nine of General Plenary Agreement 1/2021.
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