International arbitration in Spain

According to a recent survey of the Spanish market, 47% of companies would choose arbitration as their preferred method for dispute resolution, with 27% opting for arbitration as the sole method for dispute resolution and 20% preferring a combination of arbitration with other Alternative Dispute Resolution (e.g. mediation or negotiation). We therefore anticipate that the volume of arbitration proceedings will increase over the next few years.

1. HISTORICAL BACKGROUND

1.1.1 Before the Spanish Arbitration Act came into force 1 The new Spanish Arbitration Act 60/2003 (Spanish Arbitration Act) was officially published in the Official Gazette of the Spanish State on 26 December 2003 and came into force on 26 March 2004. , Spanish arbitration law was found in a combination of the Arbitration Acts 1953 and 1988.

1.1.2 When the 1953 Act was enacted lawmakers viewed arbitration unfavourably, as it was considered to be the role of the state to resolve conflicts. From an economic standpoint, the 1953 Act was enacted during a period of autocracy and foreign isolation in Spain, hence there was little or no international arbitration activity in the country.

1.1.3 In 1975, Spain ratified the 1961 European Convention on International Commercial Arbitration and in 1977 it ratified the New York Convention. 2 For the full text of the Model Law (1985) see http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf. At this time, as a result of Spain’s accession to these international commercial arbitration treaties, the idea began to develop in Spanish legal doctrine that the international treaty provisions had become rules of domestic law, and they were therefore binding on international arbitration proceedings conducted in Spain in parallel with the 1953 Act. Ratification of these conventions had introduced a dual and differentiated legal framework, but many different premises; one for domestic arbitration (in the 1953 Act) and the other for international arbitration (in the provisions contained in the international treaties ratified by Spain).

1.1.4 On 7 December 1988, the Official State Gazette published Law 36/1988, of 5 December, concerning arbitration (1988 Act). This legislative text ended a long period of unsuccessful attempts to modify the Arbitration Act of 22 December 1953 (1953 Act).

1.1.5 Changes in the business world, technological advances and new practices made the arbitration provisions of the 1988 Act insufficient. The Spanish Arbitration Act aims to accommodate technical advances and meet the changing needs of arbitral practice, particularly with regard to requirements of the arbitration agreement and interim precautionary measures.

1.1.6 The Spanish Arbitration Act brings Spanish arbitration in line with the Model Law (1985). 3 Ibid. The Spanish Arbitration Act has subsequently been amended by Act 13/2009, Act 11/2011, the Organic Act 5/2011 and Act 42/2015. These reforms have included minor amendments aimed at improving the practice of arbitration.

2. SCOPE OF APPLICATION AND GENERAL PROVISIONS OF THE SPANISH ARBITRATION ACT

2.1.1 The Spanish Arbitration Act applies to any arbitration where the seat of the arbitration is in Spanish territory, whether domestic or international in nature.

2.1.2 Certain provisions of the Spanish Arbitration Act apply even if the seat of the arbitration is outside Spain. These include:

  •  article 8, paragraphs 3, 4 and 6, on competent courts for assistance and supervision of arbitration;
  • article 9 (except paragraph 2), on the form and content of the arbitration agreement;
  • article 11, on the arbitration agreement and its impact on substantive claims before a court;
  • article 23, on the power of the arbitral tribunal to order interim measures;
  • title VIII, on the enforcement of awards; and
  • title IX, on the recognition of foreign awards.

2.1.3 The Spanish Arbitration Act supplements provisions regarding arbitral proceedings as set out in other legislation. It is intended as a general law applicable to all arbitration: either providing rules for proceedings which have no special rules or providing additional rules for arbitrations which already have their own rules, except when the rules specified by the parties are contrary to the provisions of the Spanish Arbitration Act, or to any law that expressly disapplies the Spanish Arbitration Act.

2.1.4 Employment arbitration is excluded from the scope of the Spanish Arbitration Act. Employment disputes must be resolved using the Spanish courts.

3. THE ARBITRATION AGREEMENT

3.1 Formal requirements

3.1.1 The arbitration agreement must be made in writing, in a document signed by the parties, in an exchange of correspondence or by any other means of telecommunication that provides a record of the agreement. 4 Spanish Arbitration Act, art 9(4).  This requirement is satisfied when the arbitration agreement appears and is accessible for subsequent consultation, in any other format.

3.1.2 A valid arbitration agreement, which may be in the form of a clause in a contract or contained in a separate agreement, shall express the will of the parties to submit to arbitration all or some disputes that have arisen between them or which may arise between them in respect of a determined legal relationship, whether contractual or non-contractual. 5 Ibid, art 9(1).  If the arbitration agreement is included in a standard form agreement, its validity and its interpretation is governed by the rules applicable to these types of contracts. 6 Ibid, art 9(1) and art 9(2).  

3.1.3 An arbitration agreement from another document shall be deemed incorporated into a contract if it exists in any of the forms set out in paragraph 3.1.1 above and is expressly referenced in the agreement between the parties. 7 Ibid, art 9(4). An arbitration agreement is also deemed to exist when, in an exchange of statements of claim and defence, the existence of an arbitration agreement is alleged by one party and not denied by the other. 8 Ibid, art 9(5).

3.2.1 A valid arbitration agreement obliges the parties to comply with the agreement and prevents the courts from hearing disputes on matters relating to or submitted to the arbitral proceedings. If the parties do not raise any objection to jurisdiction, the courts may hear the dispute.

3.2.2 The objection to jurisdiction must be raised within the ten-day period for submission of the statement of defence. 

4. COMPOSITION OF THE ARBITRAL TRIBUNAL

4.1 The constitution of the arbitral tribunal

4.1.1 The parties are free to determine the number of arbitrators, provided that there is an uneven number. In the absence of any agreement between the parties, a sole arbitrator is appointed. 9 Ibid, art 12.  The Spanish Arbitration Act provides that, unless agreed otherwise, a person appointed as sole arbitrator must be a jurist, except if the matter is to be decided ex aequo et bono. If a three-member tribunal is constituted, at least one of the three must be a jurist. The term jurist is used (as opposed to lawyer) to include academics and other legal professionals who are not practising lawyers.

4.1.2 Any natural person who has not been declared legally barred may act as an arbitrator, provided that they are not restricted by the legislation applicable to them in the exercise of their profession. 10 In accordance with the Organic Law of the Judicial Branch (1985), court clerks cannot be arbitrators. In addition, other individuals employed by public authorities cannot be arbitrators according to various restrictions that exist in special laws. Unless otherwise agreed by the parties, no person is be prevented by reason of their nationality from acting as an arbitrator. 11 Spanish Arbitration Act, art 13.

4.1.3 The parties may agree on the procedure for the appointment of the arbitrators, provided that there is no violation of the principle of equal treatment. If it is not possible to appoint the arbitrators through the procedure agreed upon by the parties, any party to the arbitral proceedings may apply to the competent court for the appointment of arbitrators or, if appropriate, the adoption of the necessary measures for this purpose. In this case, the court shall only refuse the request filed when it considers that the existence of an arbitration agreement is not established. 12 Ibid, art 15.  

4.1.4 Unless the parties have otherwise agreed, each arbitrator shall, within 15 days of receiving the nomination, communicate acceptance of the nomination to the nominating party. If an acceptance is not communicated within that period, the arbitrator is deemed not to have accepted his or her nomination. 13 Ibid, art 16.  This timeframe relates to all arbitral proceedings whether domestic or international.

4.2 The procedure for challenging and substituting arbitrators

4.2.1 The appointment of an arbitrator may be challenged only if circumstances give rise to justifiable doubts as to that arbitrator’s impartiality or independence or if the arbitrator does not possess the qualifications as required and agreed to by the parties. A party may only challenge a party-appointed arbitrator if it becomes aware of the reasons giving rise to the challenge after the appointment has been made. 14 Ibid, art 17(3).  

  • The parties are free to agree on a procedure for challenging an arbitrator. 15  Ibid, art 18.1.
  • In the absence of such agreement between the parties, in order to challenge an arbitrator, the interested party must state the reasons for the challenge within fifteen days of becoming aware of the acceptance or of any circumstance likely to give rise to justifiable doubts as the arbitrators’ impartiality or independence. Subsequently, and if the other party does not join the challenge and the arbitrator does not resign, the other members of the arbitral tribunal shall decide on the challenge.
  • If a party challenges the arbitrator in accordance with the agreed procedure and the challenge turns to be unsuccessful, the challenging party may in due course rely upon the challenge in applying to set aside the award. 16 Ibid, art 18.3.

4.2.2 If an arbitrator is unable to perform the functions of an arbitrator or fails to act without undue delay, they shall withdraw from office or the parties shall agree the termination. When parties fail to agree upon the termination and there is no agreed procedure to overcome such disagreement, the following rules shall apply:

  •  in arbitrations with several arbitrators, the other arbitrators will decide the issue;
  • in arbitrations with a sole arbitrator in which parties fail to reach an agreement, the Civil and Criminal Chamber of the High Court of Justice in the autonomous community will have jurisdiction to decide the issue. The application for termination shall take form of oral proceeding. This application may be joined with a request for the nomination of a replacement arbitrator if the application for termination is granted. 

4.2.3 The withdrawal of an arbitrator or the agreement by a nominating or appointing party to terminate the mandate of an arbitrator does not imply acceptance as to the validity of the basis for the challenge. 17 Ibid, art 19(2).  

4.3 The appointment of substitute arbitrators

4.3.1 Irrespective of the reason for the appointment, any new arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. Once the substitute arbitrator is appointed, the arbitral tribunal, after hearing the parties, shall decide if it is appropriate to repeat any prior proceedings. 18  Ibid, art 20.

4.4 Responsibility of an arbitrator

4.4.1 The acceptance of a mandate obliges the arbitrators and, where applicable, the arbitral institution to comply faithfully with their responsibility. If they do not do so, by reason of bad faith, recklessness or fraud, they will be liable for the damage and losses they cause. 19 Ibid, art 21(1).  Where the arbitration is entrusted to an arbitral institution, the injured party shall have a direct action against the institution, regardless of any actions for compensation available against the arbitrators. 20 Ibid, art 21(1)  Arbitrators and arbitral institutions are obliged to subscribe for professional liability insurance or equivalent insurance in the amount established by regulation. Public entities and arbitration systems which are integrated or dependent on public administration are not required to take out insurance.

4.5 Provision of funds

4.5.1 Unless otherwise agreed, both the arbitral tribunal and the arbitral institution may require from the parties the provision of funds that they consider necessary to meet the fees and expenses of the arbitral tribunal and those that may be incurred in the administration of the arbitration. Should the parties fail to provide the funds, the arbitral tribunal may suspend or terminate the arbitral proceedings. 21 Ibid, art 21(2).  If one of the parties has not made its provision within the time fixed, the arbitral tribunal, before deciding whether to terminate or suspend the proceedings, shall inform the remaining parties so that they may provide the funds within a further period fixed by the arbitral tribunal, should they wish to do so. 22 Ibid, art 21(2).

5. JURISDICTION OF THE ARBITRAL TRIBUNAL

5.1 Competence to rule on jurisdiction

5.1.1 The arbitral tribunal may determine its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement or any other objection, the acceptance of which would prevent the arbitral tribunal from entering into the merits of the dispute. For this purpose, an arbitration agreement which forms part of a contract shall be treated as severable from the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not invalidate the arbitration agreement. 23 Ibid, art 22(1).

5.1.2 Any objection referred to in paragraph 5.1.1 must be raised no later than the submission of the statement of defence. The fact that a party has appointed an arbitrator or participated in the appointment of the arbitral tribunal shall not preclude that party from raising such an objection. 24 Ibid, art 22(2).  An objection that the arbitral tribunal is exceeding the scope of its jurisdiction must be made as soon as the matter alleged to be beyond the scope of the arbitral tribunal’s jurisdiction is introduced to the arbitral proceedings. 25 Ibid, art 22(2).  

5.2 Power to order interim measures

5.2.1 Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of any party, order such interim measures as it considers necessary in respect of the subject of the dispute mentioned at point 8.3.2 below. The arbitral tribunal may require appropriate security from the applicant. 26 Ibid, art 23(1); please refer to section on judicial appointment of arbitrators.  

5.2.2 The same provisions relating to the setting aside and enforcement of awards apply to arbitral decisions in respect of interim measures, regardless of the form of those measures. 27  Spanish Arbitration Act, art 23.2.

6. CONDUCT OF PROCEEDINGS

6.1 Commencement of arbitration

6.1.1 Unless otherwise agreed by the parties, the arbitral proceedings commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. 28 Ibid, art 27.  

6.2 General procedural principles

6.2.1 The parties must be treated equally and each party must be given the opportunity to present its case fully. The arbitral tribunal, the parties and the arbitral institutions, if applicable, are obliged to keep confidential any information coming into their knowledge during the course of the arbitral proceedings. 29 Ibid, art 24.  

6.2.2 The parties may freely agree on the procedure to be followed by the arbitral tribunal in the conduct of the proceedings. 30 Ibid, art 25(1).  In the absence such agreement, the arbitral tribunal may, subject to the provisions of the Spanish Arbitration Act, conduct the arbitration in such manner as it considers appropriate. The powers conferred upon the arbitral tribunal include the power to determine the admissibility, relevance and usefulness of any evidence, the manner of taking evidence (including evidence obtained or introduced on the arbitral tribunal’s own motion) and the weight of such evidence. 31 Ibid, art 25(2).  

6.3 Seat, place of hearings and language of the arbitral proceedings

6.3.1 The parties are free to agree on the seat of the arbitration. If there is no agreement, the seat of the arbitration shall be determined by the arbitral tribunal, having regard to the circumstances of the case and the convenience of the parties. The arbitral tribunal may, after consulting the parties, meet at any place it considers appropriate for hearing witnesses, experts or the parties, or to inspect objects, documents or persons. The arbitral tribunal may deliberate at any place it considers appropriate. 32 Ibid, art 26(2).  

6.3.2 The parties are free to agree on the language to be used in the arbitration. Failing that agreement, the arbitral tribunal shall determine the language, having regard to the circumstances of the case. 33 Ibid, art 28(1).

6.4 Oral hearings and written proceedings

6.4.1 Unless otherwise agreed by the parties, the arbitral tribunal decides whether to hold oral hearings for the presentation of oral arguments, the taking of evidence and the submission of conclusions or whether the proceedings shall be conducted solely in writing. Unless the parties have agreed that no hearings shall be held, the arbitral tribunal must hold such hearings at an appropriate stage of the proceedings, if requested by a party. 34 Ibid, art 30(1).  

6.5 Court assistance in taking evidence

6.5.1 The arbitral tribunal, or any party with its approval, may request assistance from a competent court in taking evidence, in accordance with the applicable Spanish rules on the taking of evidence. This assistance may comprise the taking of evidence before the competent court or the adoption by the competent court of specific measures necessary so that the evidence may be taken before the arbitral tribunal. 35 Ibid, art 33(1).  

6.5.2 If requested, the court shall take evidence under its exclusive supervision. Otherwise, the court shall limit itself to ordering only those measures necessary to enable evidence to be taken before the tribunal. In either case, the court shall deliver to the applicant a certified copy of the proceedings to use in the arbitral proceedings. 36  Ibid, art 33(2).

7. MAKING OF THE ARBITRAL AWARD AND TERMINATION OF PROCEEDINGS

7.1 Choice of law

7.1.1 The arbitral tribunal may also base its decision on equitable principles only if the parties have expressly authorised it to do so. 37 Spanish Arbitration Act, art 34.1.  

7.1.2 When the arbitration is international in nature, the arbitral tribunal must decide the dispute in accordance with the law chosen by the parties. Any designation of the law or legal system of a given state shall be construed, unless otherwise stated, as referring to the substantive law of that state and not to its conflict of law rules. If the parties fail to specify the applicable law, the arbitral tribunal shall apply the law that it considers appropriate. 38 Ibid, art 34(2).  

7.1.3 In all cases, the arbitral tribunal shall decide the applicable law in accordance with the terms of the contract and shall take applicable usages and commercial customs into account. 39 Ibid, art 34(3).  

7.2 Timing, form, content and notification of the arbitral award

7.2.1 Unless otherwise agreed by the parties, the arbitral tribunal shall decide the dispute in a single reasoned award or in as many partial awards as it considers necessary. 40 Ibid, art 37(1).  

7.2.2 Unless otherwise agreed by the parties, the arbitral tribunal must decide the dispute within six months of the date of submission of the statement of defence or the expiry of the submission deadline. This period of time may be extended by the arbitral tribunal by means of a reasoned decision, for a period not to exceed two months; although this is also subject to an agreement by the parties to the contrary. 41 Ibid, art 37(2).  

7.2.3 If a final award is not issued within the submission deadline, the arbitral proceedings and the mandate of the arbitral tribunal shall terminate. Unless otherwise agreed by the parties, the expiry of the period to issue the final award shall not affect the validity of the arbitration agreement or the validity of any award issued. However, arbitrators may themselves be held liable for any damages caused to the parties as a consequence of the delay in rendering the award. 42 Ibid, art 37(2).  Accordingly, if a party wished to pursue its claim further, it would be required to commence new arbitral proceedings.

7.2.4 The award shall be made in writing and shall be signed by the arbitrators, who may add any dissenting opinions. Where there is more than one arbitrator, the signatures of the majority of members of the arbitral tribunal, or, alternatively, the signature of the chair alone, shall make the award binding, provided that the reason for any omitted signature is stated. 43 Ibid, art 37(3).  

7.2.5 The award shall state the reasons upon which it is based, unless the parties have agreed otherwise. 44 Ibid, art 37(4).

7.2.6 The arbitral tribunal shall provide the award to the parties in the form and time agreed by the parties. In the absence of any agreement, each party should receive a copy of the award signed in accordance with the requirements set out in paragraph 8.2.4 above. 45  Ibid, art 37(7).

7.3 Settlement

7.3.1 If, during arbitral proceedings, the parties wholly or partially settle the dispute, the arbitral tribunal shall terminate the proceedings in respect of the points agreed. If requested by both parties and not objected to by the arbitral tribunal, the settlement shall be recorded in the form of an award on agreed terms. 46 Ibid, art 36(1).  

7.4 Costs

7.4.1 Subject to the agreement of the parties, the arbitral tribunal shall determine which party (if any) is liable for costs in the award. Such costs may include the fees and expenses of the arbitral tribunal, the cost of the services provided by the institution administering the arbitration, the fees and expenses of counsel or representatives of the parties (where applicable) and other expenses of the arbitral proceedings. 47 Ibid, art 37(6).  

7.5 Termination of the proceedings

7.5.1 The arbitral proceedings and the mandate of the arbitral tribunal both terminate with the final award.

7.5.2 The arbitral tribunal must also issue an order for the termination of the arbitral proceedings when:

  • the claimant withdraws his claim, unless the respondent objects to the withdrawal and the arbitral tribunal recognises the respondent’s legitimate interest in obtaining a final settlement of the dispute;
  • the parties agree to terminate the proceedings; or
  • the arbitral tribunal finds that the continuation of the proceedings has for whatever reason become unnecessary or impossible. 48 Ibid, art 38(2).  

7.6 Correction, clarification and issue of a supplemental arbitral award

7.6.1 Within one month of receipt of the award, 49 One month is the timeframe that relates to “international” arbitral proceedings. For “domestic” arbitral proceedings, the applicable timeframe is 10 days. See Spanish Arbitration Act, art 39.1. Factors that render arbitral proceedings “international” are: i) that, at the time of conclusion of the arbitration agreement, the parties have their addresses in different states; ii) that the seat of arbitration as determined in the arbitration agreement or the place of substantial performance of the obligations under the contract or the place most associated with the contract, is situated outside the state in which the parties have their address; or iii) that the legal relationship underlying the dispute affects international trade interests. unless another period of time has been agreed upon by the parties, any party, with notice to the other party, may request that the arbitral tribunal:

  • corrects any errors in the issued award such as errors in computation, clerical or typographical errors or other errors of a similar nature;
  • clarifies a point or a specific part of the award;
  • supplements the award by taking into account other claims presented in the arbitral proceedings, but not resolved in the issued award; or
  • corrects any excesses of jurisdiction.

7.6.2 In this regard, the Spanish Arbitration Act avoids the reference in article 33 of the Model Law (1985) to an “additional award” to address omissions. 50 For the full text of the Model Law (1985) see http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf.  The practical difference is that a successful application under article 33(3) of the Model Law (1985) results in two separate awards (the original award and an additional award), while the procedure under the Spanish Arbitration Act results in a single (although supplemented) award.

7.6.3 Within one month of hearing the other party’s comments, the arbitral tribunal must decide on applications for the correction of errors and for clarification. The application for issuing a supplement to the issued award must be decided within two months. 51 Spanish Arbitration Act, art 39.2.  

7.6.4 Within one month of the date of the issued award, the arbitral tribunal may at its own instigation correct any computational, clerical or typographical errors or other errors of a similar nature. 52 Ibid, art 39(3). With regard to “domestic” arbitral proceedings, the time frame is 10 days.

8. ROLE OF THE COURTS

8.1 Jurisdiction of the courts

8.1.1 The Spanish Arbitration Act follows the Model Law (1985) 53 For the full text of the Model Law (1985) see http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/0654671_Ebook.pdf.  in this regard and the court is entitled to intervene except where provided by the Spanish Arbitration Act. The appropriate court of first instance will likely depend on the issue to be determined, as set out below.

8.2 Judicial appointment of arbitrators

8.2.1 The Civil and Criminal Chamber of the High Court of Justice in the autonomous community of the seat of the arbitration has jurisdiction in respect of the judicial appointment of arbitrators. If the seat of the arbitration has not yet been determined, then jurisdiction resides with the High Court of Justice at the domicile or habitual place of residence of any of the respondents. If none of the respondents have their domicile or habitual place of residence in Spain, the competent court of the domicile or habitual place of residence of the claimant has jurisdiction. If the claimant’s domicile or habitual place of residence is not in Spain, then the claimant may choose the competent court. 54 Spanish Arbitration Act, art 8.1.  

8.3 Interim measures

8.3.1 The competent court at the place where any award will be enforced shall have jurisdiction in respect of interim measures. In the absence of such a court, the competent court at the place where the measures are to be implemented has jurisdiction. 55 Ibid, art 8.3. With regard to courts where interim measures must be enforced, see Spanish Civil Procedure Act (2000), art 724.  

8.3.2 The following interim measures may be ordered by a court, among others:

  • where there is doubt regarding the solvency of the defendant, a pre-award schedule, aimed at ensuring the enforcement of awards ordering the delivery of amounts of money or yields, rents and perishable goods that can be estimated in cash by applying fixed prices. A pre-award schedule would be appropriate if it were the most suitable measure and could not be substituted by another measure that was equally or more efficient and less damaging for the respondent;
  • court-ordered receivership are profitable assets, when a judgment award is sought ordering their delivery on the basis of legal, beneficial or any other title involving a legitimate interest in maintaining or improving profitability. Similarly, when guaranteeing profitability is deemed to be of paramount importance for the effectiveness of the final judgment, a court-ordered receivership may be a valid interim measure;
  • the deposit of a moveable asset, when in the arbitration the claimant is seeking delivery of the said asset and the asset is in the possession of the respondent;
  • the drawing up of inventories of assets in accordance with conditions to be specified by the court;
  • the precautionary registration of the claim when the claim refers to assets or rights subject to recording in public registries;
  • other registrations where publication in the relevant register may assist in ensuring effective enforcement;
  • a court order to provisionally cease an activity. This may involve an order to temporarily refrain from certain conduct or an activity or an order prohibiting the suspension of specific conduct or an activity;
  • the intervention and deposit of income obtained through an activity considered illicit (i.e. contrary to the civil law) and whose prohibition or cessation is requested in the claim, as well as the deposit of amounts claimed as compensation for breaches of intellectual property rights;
  • the temporary deposit of works or objects allegedly produced in breach of rules on intellectual and industrial property, as well as the deposit of any material or devices used for their production;
  • the suspension of a company resolution by the claimant or claimants who represent at least one or five per cent of the company’s capital, depending on whether or not the respondent company has issued securities that, at the time of the dispute, are listed on an official secondary market; and
  • any other measures expressly established by law for the protection of certain rights or deemed necessary to ensure the effective enforcement of an award.

8.4 Obtaining evidence and other court assistance

8.4.1 The court of first instance at the seat of the arbitration or that of the place where the assistance is required has jurisdiction in respect of judicial assistance in the obtaining of evidence. 56 See Spanish Arbitration Act, art. 8(4); please refer to section on court assistance in taking evidence  

8.5 Enforcement of the arbitral award

8.5.1 The court of first instance at the place where the award was issued has jurisdiction to enforce the award, in accordance with article 545.2 of the Spanish Civil Procedure Act (2000) and, where applicable, article 958 of the Spanish Civil Procedure Act of 1881.

9. CHALLENGING AND APPEALING AN ARBITRAL AWARD

9.1 Applications to set aside an arbitral award

9.1.1 An award may be set aside only if the party making the application alleges and proves:

  •  that the arbitration agreement does not exist or is not valid;
  • that the claimant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present its case;
  • that the arbitral tribunal decided questions beyond its jurisdiction;
  • that the appointment of the arbitrators or the arbitral procedure was not in accordance with the provisions of the Spanish Arbitration Act nor with the agreement of the parties, unless such agreement was in conflict with a provision of the Spanish Arbitration Act from which the parties cannot derogate;
  • that the arbitral tribunal decided questions not capable of settlement by arbitration; or
  • that the award is in conflict with public policy. 57 Ibid, art 40 and 41.  

9.1.2 The High Court of Justice of the autonomous community where the award was made has jurisdiction to determine an application to set aside an award. 58  Ibid, art 8(5).

9.1.3 An application for setting aside an award must be made within two months of the date on which the party making that application received the award or, if a request for correction, clarification or a request to supplement the award is made, the date on which the party making that application received the decision on that request or the date on which the term for making a decision concerning that request expired. 59  Ibid, art 41(4).

9.1.4 The application to set aside an award follows the procedure for oral proceedings as set out in the Spanish Arbitration Act. 60 Spanish Arbitration Act, art 42.1.  

9.1.5 The statement of claim that seeks to set aside the award must be accompanied by documentation evidencing the arbitral agreement and the award. If applicable, it also needs to provide the evidence upon which the applicant intends to rely. 61 Ibid, art 42(1).  

9.1.6 There is no appeal from the judgment made by the provisional court of appeal on an application to set aside the award. 62 Ibid, art 42(2).  

9.1.7 The award is not sent back to the arbitral tribunal for amendment and the arbitral tribunal is not reconstituted to address the dispute again. The judgment takes effect res judicata, and so a party cannot start the arbitration afresh and a new arbitral tribunal cannot be constituted to address the dispute anew.

9.2 Res judicata and the revision of final arbitral awards

9.2.1 The final award has res judicata effect and shall only be subject to an appeal in accordance with the procedure established in the Spanish Civil Procedure Act (2000) for final judgments.

10. RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS

10.1 Domestic arbitral awards

10.1.1 An award is enforceable even where an application to set it aside has been made. However, the party against whom enforcement is sought may apply to the competent court for the suspension of enforcement, provided that the applicant tenders security for the amount awarded, plus the damages and losses that may arise from the delay in the enforcement of the award. 63 Ibid, art 45(1).  

10.1.2 The suspension of enforcement is lifted and the enforcement continues when the court is satisfied that the application to set aside has been rejected, without prejudice to the rights of the party seeking enforcement to demand, if applicable, indemnification for the damages and losses caused by the delay in the enforcement. 64  Ibid, art 45(2).

10.1.3 If a court grants an application to set aside an award, any previous enforcement of the set aside award will be revoked. 65 Ibid, art 45(3).  

10.2 Foreign arbitral awards

10.2.1 The recognition of foreign awards (ie any award which has been issued outside Spanish territory 66 Ibid, art 46(1). ) is governed by the New York Convention 67 For the full text of the New York Convention (1985) see https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf. (without prejudice to the provisions of other, more favourable, international conventions) and takes place in accordance with the procedure set out in the civil procedure rules for judgments issued by foreign courts. 68 See Spanish Arbitration Act, art 46.2.

Juan Ignacio Fernández Aguado
Partner
Madrid