Arbitrators exercise quasi-jurisdictional functions, meaning that they have the authority to make the final decision on the controversies arising between the parties that have agreed on submitting their disputes to arbitration. Nonetheless, their mandate concludes with the issuance of the arbitral award (a decision equivalent to a court ruling), thus if the parties do not comply with it voluntarily, it will have to be enforced by a judge with executive powers.
In the following lines, we will refer to the procedures for requesting the enforcement of foreign arbitral awards in Spain, in other words, those arbitral awards that have been delivered outside of Spanish territory.
Applicable Law
Under Article 46 of Act 60/2003 of 23rd December, on Spanish Arbitration, it is necessary to resort to the Convention relating to the recognition and enforcement of foreign arbitral awards, made in New York on 10th June 1958 (henceforth, “NYC 1958”) to which 156 states have adhered up until now as well as to the procedure established in the Spanish code of civil procedure for the exequatur of judgements issued by foreign courts.
Since 20th August 2015, Title V of Act 29/2015, of 30th July, on international legal cooperation in civil matters is applicable (henceforth, “LCJI”) to the claims for the exequatur of foreign arbitral awards submitted before Spanish courts (regardless of the date upon which the foreign arbitral award was issued). Consequently, articles 951 to 958 on the effect in Spain of judgements rendered by foreign jurisdictional organs have been repealed by the Spanish Civil Procedure Act of 1881 (in turn partially repealed by the current law 1/2000, of 7th January, on Civil Procedure), which applied until the entry into force of the recent LJCI.
Legal proceeding of the exequatur
Title V of the LCJI opts for the maintenance of the exequatur as a special procedure divided into two stages with the object of (a) declaring, primarily, the recognition of a foreign court decision, and (b) where appropriate, authorizing its enforcement.
However, the particular characteristics of the recognition and enforcement of foreign arbitral awards are not taken into account; consequently, that set forth in NYC 1958–especially Articles IV and V–, in the Arbitration Act and the Spanish Civil Procedure Act must also be observed.
I. Competent court for deciding on the recognition and enforcement of the foreign arbitral awards
Since June 2011, according to Article 8.6 of the Spanish Arbitration Act, the following courts are competent:
a) the Civil and Criminal Chambers of the High Court of Justice of the autonomous communities for the recognition of the foreign arbitral awards; and
b) the Court of First Instance for the enforcement of foreign arbitral awards.
II. Application for the recognition and enforcement of foreign arbitral awards
Hereafter, Article 54 of the LCJI establishes that the exequatur process may be initiated at the request of any individual who justifies a legitimate interest against the other party or parties against whom the foreign arbitral award is invoked.
The claim must comply with the requirements of Article 399 of the Spanish Civil Procedure Act on claims and their content – identification of the claimant and defendant, statement of facts and points of law, and manifestation of what is intended-.
Likewise, the parties must be represented by a court agent (procurador) and assisted by a lawyer.
III. Documents that must be submitted together with the claim
Article IV of NYC 1958 establishes the documents, that must be submitted together with the claim, by the party requesting the recognition and enforcement of the arbitral award:
a) The original arbitral award duly authenticated or a copy of the original that meets the conditions required for its authenticity; and
b) The original of the arbitration agreement or a copy that meets the conditions required for its authenticity.
Furthermore, if the arbitral award or the arbitration agreement were not written in Spanish (or another official language of the relevant autonomous community), the party that requests the recognition and enforcement of the arbitral award must submit a translation of said documents.
IV. Time limit to submit an exequatur claim
The time limit to submit an exequatur claim ends within five years after the arbitral award becomes final.
V. Opposition and resolution
The Court will examine the claim and the documents submitted and, once they are accepted, they will be transferred to the defending party for them to object, within thirty days. Once the objection has been formalized or the term for submission has elapsed without opposition having been formulated, the jurisdictional organ shall give its ruling.
Carla Villavicencio
Vilá Abogados
For more information, please contact:
11th December 2015
