SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henríquez de Luna, Virginia Jover and Carmen Serrano, López-Ibor Abogados
Domestic Awards Domestic awards can be challenged in two different ways. • By exercising the action of annulment on grounds established in Article 41 of the AA (numerus clau - sus), which is very similar to Article V of the New York Convention. • By exercising the action of review of the award on the following grounds according to Article 43 of the AA and Article 501 et seq of the CPA: (a) decisive documents have been obtained that could not be made available in the arbitration proceedings by reason of force majeure or by the party favoured by the arbitration award; (b) the award was made on the basis of docu - ments subsequently found to be false in criminal proceedings, or that were not known to the requesting party at the time the award was made; (c) the award was made on the basis of witness or expert evidence that was found to be false in criminal proceedings; and (d) the award was made unjustly on the basis of bribery, violence or fraudulent schemes. Foreign Awards Foreign awards can be challenged through exequatur proceedings on the grounds of Article V of the New York Convention or on grounds established in anoth - er international or bilateral treaty ratified by Spain. Grounds for challenging foreign arbitral awards are split into two different proceedings: • recognition proceedings (exequatur); and • enforcement proceedings of the recognised foreign award as a national judgment (Article 517 et seq of the CPA). Recognition proceedings are known as exequatur and only final awards are subject to recognition or enforce - ment. Once the foreign award is recognised, it could be enforced as a domestic judgment (Article 46.2 of the AA) under the domestic enforcement procedure established in the Spanish CPA.
Grounds for challenging foreign awards are subject to international treaties and bilateral treaties signed by Spain. The main such treaties are as follows: • the New York Convention – a foreign award could be challenged in application of Article V of the New York Convention; • the European Convention on International Com - mercial Arbitration (Geneva 1961); and • bilateral treaties that cover the recognition and enforcement of foreign awards – France (1969), Mexico (1989), China (1992), Morocco (1997), Colombia, El Salvador, Israel, etc. The New York Convention The New York Convention is the most commonly used international treaty, due to its natural tenden- cy to facilitate the recognition and enforcement of foreign awards. Therefore, in most cases, a foreign award could be challenged on the following grounds in application of Article V of the New York Convention: • the invalidity of the arbitration agreement; • violation of due process; • the arbitrator exceeded their authority; • irregularity in the composition of the arbitral tribu - nal or the arbitral procedure; and • the award is not binding or has been set aside. The grounds in Article V (2) can be examined ex officio and, therefore, can be examined even if the request for enforcement is unopposed. They are: • the non-arbitrability of the subject matter of the award; and • the violation of public policy. Special consideration has to be taken when defining “public policy”, which is an abstract concept linked with national sovereignty and jurisdiction as designat - ed in the domestic Constitution. The Spanish Supreme Court defines “public policy” as grounds causing “real and substantive constitutional breach of rights” (lack of impartiality of the arbitrator, lack of reasoning of the award, res iudicata or non bis in idem, etc).
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