On June 26, 2024, Mexico's Supreme Court (SCJN) issued a
landmark decision in Amparo Directo en Revisión 5069/2023,
setting an important precedent for digital platforms providing
services to Mexican users, especially those operating remotely and
under adhesion contracts. In this case, the Court reviewed a
jurisdiction clause embedded in the Terms and Conditions of a
Spain-based digital service provider and ruled that it was invalid
as it obstructed the user's constitutional right to access
justice.
The case: unilateral foreign jurisdiction
clause
The case involved a Mexican user engaged in a dispute with a
European service provider of wedding services. The website's
Terms and Conditions, accepted via clickwrap, specified that all
disputes would be subject exclusively to the courts of Spain.
However, the relationship was clearly asymmetrical—the user
had no real opportunity to negotiate or modify the jurisdiction
clause.
A District Judge and the Circuit Court upheld the clause,
validating the express submission to Spanish courts. But the
Supreme Court reversed that decision, finding the clause violated
the constitutional right to access justice (Article 17) and the
principle of procedural equality between parties.
The Court: submission is not waiver
The SCJN reaffirmed that access to justice cannot be restricted by
contract clauses that effectively prevent one party from seeking
redress. This is particularly true for adhesion contracts, where
users lack real bargaining power.
The Court analyzed the context of online contracts, recognizing
that digital transactions often replicate structural inequalities.
Referencing international principles (UNIDROIT, OECD, and UN
guidelines on e-commerce and consumer protection), the Court found
the clause:
- Lacked sufficient objective connection to the chosen forum (Spain).
- Imposed a disproportionate burden on the user, requiring litigation in a foreign country under a different legal system.
- Was not based on informed, negotiated consent but rather automatic clickwrap acceptance.
Accordingly, the Court declared the jurisdiction clause invalid
and unconstitutional.
Emerging precedent: stronger protection in digital
contracts
This ruling extends prior judicial standards—previously
applied to banking adhesion contracts—to digital commerce and
platform services.
The resulting jurisprudence, carries significant persuasive
authority:
“The First Chamber of the Mexican Supreme Court of
Justice rules that express submission clauses in favor of foreign
courts, stipulated in the "terms and conditions" of
adhesion contracts used by foreign companies providing services in
Mexico through websites, violate users' right of access to
justice when they exclusively extend jurisdiction so that users
must litigate in another country to resolve disputes between the
parties.”
This means that technology companies, e-commerce platforms,
fintech firms, mobile apps, global marketplaces, and any digital
service provider operating in Mexico must urgently review their
Terms and Conditions and reconsider any foreign jurisdiction
clauses that might block Mexican court access.
Practical implications: what platforms should do:
- Audit your Terms and Conditions
- Establish a reasonable territorial link
- Engage local counsel in Mexico
- Consider valid alternative mechanisms (e.g., arbitration)
What happens if platforms fail to adapt?
- Clauses may be declared null in Mexican courts.
- Service providers may be required to litigate locally despite contract terms.
- Legal and reputational risks may increase significantly.
- Contractual practices may be challenged as abusive or unconstitutional.
Conclusion
This SCJN ruling strengthens judicial protection for Mexican
digital users and sends a clear message: online contract acceptance
does not justify abusive clauses or implicit waiver of fundamental
rights.
Digital platforms must adapt to this legal standard to reduce
exposure and ensure compliant operations in Mexico. Having
qualified Mexican counsel is no longer optional—it's
essential.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
