SPAIN Law and Practice Contributed by: Daniel Jiménez García, SLJ Abogados
tion or clarification, and follows the verbal trial route with a written response. The decision of the High Court is final and not subject to ordinary appeal, although an application for constitutional relief ( amparo ) to the Constitutional Court is possible where a fundamen - tal right has been infringed. That route has proved decisive: the Constitutional Court has now decided a series of arbitration amparos , and in 2026 it took the unprecedented step of declaring an award final itself rather than remitting the case to the Arbitration Tribunal. A Practical Warning The preclusion rule is strictly applied. A ground not raised before the tribunal when it could have been will not be entertained. 11.2 Excluding/Expanding the Scope of Appeal No Contracting Out The action to set aside is mandatory and cannot be waived, excluded or narrowed by agreement. Nor can the parties expand the statutory grounds or confer on the courts a power of merits review that the Arbitration Act does not give them; the grounds in Article 41 are exhaustive as a matter of public policy. A Contractual Second Look What parties can do is build a review mechanism inside the arbitration. The CEA’s Arbitration Rules in force since 1 January 2026 introduce an optional chal - lenge to the award ( impugnación opcional del laudo ), under which parties may agree – in the arbitration clause or before any arbitrator is appointed – to an intra-institutional review by a second tribunal appoint - ed by the CEA. 11.3 Standard of Judicial Review Strictly Procedural There is no review of the merits. The High Court veri - fies whether one of the Article 41 grounds is made out; it does not re-examine the facts, re-weigh the evi - dence or substitute its own view of the applicable law. Constitutional Correction This position has been settled the hard way. Between the mid-2010s and 2020, the TSJM annulled a signifi - cant number of awards on a broad reading of public
policy. The Constitutional Court intervened in Judg - ment 46/2020 of 15 June 2020 and in Judgments 17/2021, 55/2021 and 65/2021, holding that: • public policy in Article 41 (1)(f) must not be used to review the substance of the arbitrators’ reasoning; • the duty to give reasons in an award is not equiva - lent to that owed by a court; and • an award may only be annulled if it is arbitrary, illogical, absurd or irrational. Judgment 146/2024 of 2 December 2024 confirmed that line. That trajectory culminated in the plenary judgments of 23 June 2026, which the Spanish arbitra - tion community received as a clear signal of protection for the institution and as confirmation that Madrid’s supervisory courts will respect the finality of awards. The June 2026 Plenary Judgments On 23 June 2026, the plenary Constitutional Court delivered two unanimous judgments – the first arbitra - tion decisions taken in plenary – which mark the most significant development in Spanish arbitration law in the past year. In one, brought by Tempus Holdings 76 Sàrl, the TSJM had annulled part of a February 2023 award rejecting a loss of profits claim of more than EUR30 million, on the basis that the tribunal had disregarded the expert evidence. The Constitutional Court held that the award did contain reasoning on the point and that what the TSJM had labelled apparent reasoning was in truth a demand for reinforced evidential explanation that forms no part of the arbitral standard. It quashed the TSJM judgment and declared the relevant part of the award final, without remitting the matter – a step with no modern precedent. Why It Matters The practical effect is significant. An award-holder who succeeds in amparo no longer necessarily faces a further round before the TSJM, which removes a substantial source of delay and cost. The judgments also confirm that the tribunal’s assessment of expert evidence and its allocation of the burden of proof are matters for the tribunal alone.
935 CHAMBERS.COM
Powered by FlippingBook