Due to existing conventions, international arbitration has a mayor advantage over litigation, as they offer various opportunities for enforcement. Arbitration can be defined as an alternative dispute resolution that takes place outside of the courtroom. The parties to the dispute select an impartial third party, the arbitrator, who renders a decision. The outcome of arbitration is binding. According to Article 1 (para.1 and 2) of the New York Convention a foreign arbitral award is an award made in another State other than the State where recognition and enforcement of the award are sought. Recognition means that the award has the same legal effect in the State in which recognition and enforcement are sought, as it has in the State in which the decision was rendered. For an award to be recognized in another State, an exequatur should be granted. After recognition, enforcement should be sought. Enforcement means that the award may be executed before a competent court.
Which national and/or international laws are applicable in Spain?
The legal framework for recognition and enforcement of foreign arbitral awards is regulated by the Arbitration Act 2003 (Act 60/2003), Article 46, under the heading “Foreign status of award”, and stipulates:
“Exequaturs for foreign awards will be governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York on 10 June 1958, without prejudice to the provisions of other more favourable international conventions, (…).’
The Law 29/2015 of 30 July (International Cooperation in Civil Matters) is applicable in civil and commercial matters. Title V of this law provides the legal framework for the exequatur of foreign judgments. Two procedures are given, namely: request for recognition and enforcement of the lex fori.
However, Title V makes no reference to the requirements of foreign arbitral awards. The international treaty -dealing with the recognition and enforcement of commercial awards- to which Spain adheres, is the New York Convention. It is noteworthy to mention that Spain has also signed bilateral conventions with other countries with regard to the recognition and enforcement of foreign arbitral awards.
According to Article IV of the New York Convention: “To obtain the recognition and enforcement (…), the party applying for recognition and enforcement shall, at the time of the application, supply:
- The duly authenticated original award or a duly certified copy thereof;
- The original agreement referred to in article II or a duly certified copy thereof.
If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.”
In the landmark case of 20 July 2015, the Court of Appeal of the Commercial Court of Madrid ruled that Article IV (b) should not be taken in strict sense but that only the expression of intent that the parties will submit evidence to arbitration is necessary. As noted above, Article IV (b) states that the original agreement or certified copy is necessary, however, with the Court’s recent ruling this means that the Court follows an interpretative criteria of teleological character.
Which court has jurisdiction in foreign arbitral cases in Spain?
According to Article 8.6 of the Spanish Arbitration Act (Act 60/2003),amended by Law11/2011, of 20 May, the Civil and Criminal Chambers of the High Court of Justice situated in the autonomous communities have jurisdiction to recognize foreign arbitral awards, while, for the enforcement of foreign arbitral awards the jurisdiction lays with the Court of First Instance (Article 8.4 of Act 60/2003).
Charline Hoever & Alberto Álvarez