SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henríquez de Luna, Virginia Jover and Pedro Echeguren, López-Ibor Abogados
The NY Convention The NY Convention is the most commonly used inter - national treaty, due to its natural tendency 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 NY 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). Arbitration The AA identifies what legal issues are suitable to be settled by arbitration: • Article 2 of the AA establishes the domestic criteria for identifying the subject matter of the legal con - troversy, and its suitability for settlement by arbitra- tion; and • Article 6 of the AA establishes the international criteria for identifying the subject matter of the legal controversy, and its suitability for settlement by arbitration. In relation to time limits to challenge the awards, domestic awards should be challenged no later than two months after the notification of the award (Article
(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 exequa - tur proceedings on the grounds of Article V of the NY Convention or on grounds established in another 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 NY Convention – a foreign award could be challenged in application of Article V of the NY 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.
451 CHAMBERS.COM
Powered by FlippingBook