ENFORCEMENT OF AN ARBITRAL AWARDS IN SPAIN
In order to enforce an arbitral award in Spain we have to differentiate what type of award we want to enforce:
- 1.- NATIONAL AWARD: A national award is an award rendered within Spanish territory.
- 2.- FOREIGN AWARD: A foreign award is an award rendered outside Spanish territory.
The national arbitral award must be enforced by the same procedure and through the same legal ways as a judgment of a national judge. This enforcement procedure is regulated in the Civil Procedure Act and in Articles 44 and 45 of the Arbitration Act 2003.
A national award can be enforced even if an action for annulment has been brought against it. In this case, the party against whom enforcement is sought may apply for a stay of enforcement of the award. However, the party must provide security plus any damages that may arise from delay in enforcement of the award.
Finally, no appeal may be lodged against the decision resolving the request for suspension.
With regard to the FOREIGN ARBITRAL AWARD, recognition by the Spanish Courts will be necessary, through the figure of the exequator. Article 46 of the Arbitration Act establishes that the exequator of foreign awards shall be governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958. This 1958 New York Convention is applied in Spain through the Law on International Legal Cooperation which, in its Articles 52 to 55, regulates the recognition of FOREIGN ARBITRAL AWARDS by the Spanish Courts (EXEQUATOR).
Specifically, the competent Spanish Courts for the recognition of a FOREIGN ARBITRAL AWARD are the High Courts of Justice.
The petition for recognition of an such AWARD must be signed by a Lawyer and a Procurador (who have the right of representation in Spanish Court). The following documents must be attached to the petition:
+ The original or authentic copy of the foreign decision, duly legalised or apostilled.
+ The relevant translations in accordance with Article 144 of the Civil Procedure Act.
When the enforcing party files the claim, the Court will review whether all legal requirements have been complied. If not, it may request that any defects be remedied. The Court may also raise questions about its possible jurisdiction to admit the claim. The Public Prosecutor’s Office is an interested party and may intervene in the case. The Court must resolve the application by an ORDER which may be appealed against by the parties. If the order appealed against is upheld, the court may suspend enforcement. In other case, it will be subject to the provision of appropriate security.
Once the FOREIGN AWARD has been satisfactorily recognised (EXEQUATOR), the competent Courts to enforce such AWARD will be the Courts of First Instance where the defendant has its registered office in Spain.
Then, the enforcing party files the application for enforcement of the recognised FOREIGN ARBITRAL AWARD (exequator). In consequence, the assets of the enforced party may be seized through the Court (in Spain there is no bailiff) . So, when this occurs, such assets will be made available to the enforcing party.
Finally, the enforced party must pay:
- the principal debt recognised in the AWARD,
- and all the costs that the enforcement proceedings cause to the enforcing party.