SPAIN Law and Practice Contributed by: Jose Piñeiro, Natàlia Ros and Laura Martín, Cases & Lacambra
appealing the decision arising from the proceedings are limited. In this regard, it should be noted that the exclusion by the parties of the action for annulment of the award is not allowed under Spanish law. 11.3 Standard of Judicial Review The standard of judicial review is deferential, since the courts cannot review the merits of the dispute resolved by the arbitrator. According to Article 41 of the SAA, an award may be set aside if any of the following circumstances is proved: • The arbitration agreement does not exist or is invalid. • It has not been possible to give proper notice of the appointment of an arbitrator or of the arbitral proceedings, or a party has not been able to assert its rights. • The arbitrators have ruled on matters not submit - ted for their decision. • The appointment of the arbitrators or the arbitra - tion proceedings have not been in accordance with the agreement of the parties, unless such agree - ment would be contrary to a mandatory rule of the SAA, or, in the absence of such an agreement, they have not been in accordance with the SAA. • The arbitrators have ruled on matters not subject to arbitration. • The award is contrary to public policy. As can be seen, the law does not recognise the pos - sibility of applying for the annulment of an award on the grounds that the rules applicable to the merits of the case have been violated.
This is established in Article 46 of the SAA. However, it also mentioned that the aforementioned New York Convention will be applicable in the absence of inter - national conventions that are more favourable. 12.2 Enforcement Procedure In Spain, the procedure and rules for the enforce - ment of an award depend on whether the award to be enforced is national or international. If the award is national, the party seeking to enforce the award simply has to apply for enforcement before the court of first instance of the place in which the award was rendered. On the other hand, if the award is international, the general rule is that a party must apply for its recogni - tion before the court of justice of the domicile of the party against whom the award is to be enforced, or in the place where the award should produce its effects. Once it is recognised, enforcement may be sought before the court of first instance of the domicile of the person against whom the award is to be enforced, or where it should produce its effects. The international relevance of annulment decisions made by the courts in the country in which arbitration took place is controversial. In general, if an award is annulled in the state of origin, it will not be subject to recognition in another state, since, if it is not valid in its state of origin, it cannot be valid in any other jurisdiction. In any case, denying a foreign award because it has been annulled by a foreign court decision means giv - ing effect, indirectly, to the award in Spain. In conclusion, there is a wide margin of manoeuvre for Spanish courts not to deny the exequatur of foreign arbitral awards that have been annulled on grounds contrary to Spanish public policy. On the other hand, if the appeal for annulment of the foreign award is still pending, the Spanish exequatur court may postpone the decision on the enforcement of the award.
12. Enforcement of an Award 12.1 New York Convention
In July 1977, Spain enforced the Convention on the Recognition and Enforcement of Arbitral Awards, as adopted in New York in June 1958, which is the instru - ment that generally governs the enforcement of inter - national awards in Spain.
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