A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Spain.

2. Date of entry into force of the New York Convention

10 Aug. 1977.

(Source: Instrument of Accession of 29 April 1977, published in the State Official Gazette on 11 July 1977; errata correction in the State Official Gazette of 17 Oct. 1986.)

3. Has any reservation been made under Art. 1(3) of the New York Convention regarding:

(a) reciprocity?

No.

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. 1(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No.

(Source: Arbitration Law 60/2003 of 23 Dec. 2003, published on 26 Dec. 2003, Arts. 1, 44 and 46.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

  1. New York Convention;
  2. Geneva Convention on International Commercial Arbitration of 21 April 1961;
  3. Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States of 14 Oct. 1966;
  4. Arbitration Law 60/2003 of 23 Dec. 2003, as amended by Laws 13/2009 of 3 Nov. 2009 and 11/2011 of 20 May 2011;
  5. Law 29/2015, of 30 July 2015, on International Judicial Cooperation on Civil Matters;
  6. Civil Procedure Law 1/2000 of 7 Jan 2000;
  7. Bilateral treaties for recognition and enforcement of judgments and awards, including:
  • Treaty on the Enforcement of Judgments in Civil and Commercial Matters between Spain and Switzerland, 10 Nov. 1896 (entry into force: 9 July 1989);
  • Convention on the Recognition and Enforcement of Judicial and Arbitral decisions between Spain and France, 28 May 1969 (entry into force: 14 Mar. 1970);
  • Convention on Judicial Assistance and on the Recognition and Enforcement of Judgments in Civil and Commercial Matters between Spain and Italy, 22 May 1973 (entry into force: 15 Nov. 1977);
  • Convention on Judicial Assistance, Recognition and Enforcement of Judgments in Civil and Commercial Matters between Spain and Czechoslovakia, 4 May 1987 (entry into force: 3 Dec. 1988);
  • Convention on the Recognition and Enforcement of Judgments and Arbitral Awards in Civil and Commercial Matters between Mexico and Spain, 17 Apr. 1989 (entry into force: 9 April 1991);
  • Convention on Judicial Assistance in Civil and Commercial Matters between Spain and Brazil, 13 Apr. 1989 (entry into force: 10 July 1991);
  • Treaty on Judicial Assistance in Civil and Commercial Matters between Spain and China, 2 May 1992 (entry into force: 2 May 1992);
  • Treaty on Judicial Assistance in Civil Matters between Spain and the Republic of Bulgaria, 23 May 1993 (entry into force: 30 June 1994);
  • Convention on Judicial Cooperation in Civil, Commercial and Administrative Matters between Spain and Morocco, 30 May 1997(entry into force: 25 June 1997);
  • Convention on Judicial Cooperation between Spain and Uruguay, 4 Nov. 1987 (entry into force: 4 Nov 1998).

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes. The enforcement of foreign awards is subject to a five-year statute of limitation. This limitation period applies to enforcement proceedings, and not to the separate procedure for recognition of foreign awards, which must take place prior to enforcement.

(Source: Law 29/2015, of 30 July 2015, on International Judicial Cooperation on Civil Matters, Art. 50; Civil Procedure Law 1/2000 of 7 Jan. 2000, Art. 518.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The limitation period is five years. It is unclear whether the five-year limitation period starts running from the moment the award is recognized in Spain or from the moment the award has become final.

(Source: Law 29/2015, of 30 July 2015, on International Judicial Cooperation on Civil Matters, Art. 50; Civil Procedure Law 1/2000 of 7 January 2000, Art. 518; decision of the Court of Appeal of Zamora, 27 Nov. 2009 and decision of the Court of Appeal of Soria, 19 Dec. 2011.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

For the recognition of foreign awards in Spain, jurisdiction lies with the Civil and Criminal Chamber of the Superior Court of Justice of the Autonomous Community where the party against whom recognition is sought or the person to whom the award or decision applies is domiciled or resides. Alternatively, territorial jurisdiction may be determined by the place of enforcement or where the award is to take effect.

For the enforcement of foreign awards, jurisdiction lies with the First Instance Court determined according to the same criteria.

(Source: Arbitration Law 60/2003 of 23 Dec. 2003, Art. 8.6, as modified by the Law 11/2011 of 20 May 2011.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no such requirements under Spanish law other than the jurisdictional criteria mentioned in Q.7 above. Spanish Courts cannot dismiss jurisdiction over recognition and enforcement of foreign awards.

(Source: Organic Law 6/1985, of 1 July 1985, of the judicial branch, Art. 22 octies.3.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Inter partes proceedings.

(Source: Law 29/2015, of 30 July 2015, on International Judicial Cooperation on Civil Matters, Art. 54.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

No, the ruling granting or denying recognition by the competent Civil and Criminal Chamber of the Superior Court of Justice of the Autonomous Community is final and cannot be appealed.

The decision by the competent First Instance Court admitting or rejecting enforcement cannot be appealed either. However, if enforcement is granted, the objecting party may file an opposition against the enforcement before the same First Instance Court, and the decision is subject to appeal before the Court of Appeal of the province where the First Instance Court is located.

(b) How many levels of appeal or recourse are available against this decision?

See Q. 10(a) above.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

The earliest stage at which execution of assets may be obtained is once the foreign award is recognized.

However, it is possible to request interim measures from the Court of First Instance at the place where enforcement will be sought or where the interim measures are to become effective, in conjunction with the request for recognition and enforcement of the award.

(Source: Decision of the Spanish Supreme Court, 28 May 2002.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

A duly authenticated original award or a duly certified copy thereof, as required by Art. IV(1)(a) of the New York Convention.

Spanish case law has waived the requirement to supply the original arbitration agreement when the court is satisfied, upon the basis of the evidence provided, that the party against whom recognition is sought appeared in the arbitration and did not contest jurisdiction on grounds of the non-existence of an arbitration agreement

(Source: Decision of the Supreme Court (Civil Chamber), 7 Oct. 2003.)

The Court of Appeal confirmed that there is no need to file the original, or a duly certified copy, of the arbitration agreement if the unequivocal intention of the parties to submit their disputes to arbitration can be established through different means. Such intention could be inferred from the fact that the party challenging the enforcement application appeared before the arbitral tribunal and answered the statement of claim without challenging the jurisdiction of the arbitral tribunal. A similar approach was taken by the Superior Court of Justice of Catalonia, where the Court, relied on UNCITRAL's Recommendation regarding the interpretation of Art. II (para. 2) and Art. VII (para. 1) of the New York Convention to establish that an arbitration agreement resulting solely from an exchange of electronic messages was sufficient.

(Source: Decision of the Court of Appeal of Madrid, 20 July 2015; by the decision of the Civil and Criminal Chamber of the Superior Court of Justice of Catalonia of 6 May 2016; UNCITRAL's Recommendation regarding the interpretation of Art. II (para. 2) and Art. VII (para. 1) of the New York Convention, of 7 July 2006.)

In other situations, the original arbitration agreement must be supplied.

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The entire award must be submitted.

There is no general requirement to supply the entire contract containing the arbitration agreement.

(c) Are originals or duly certified copies required?

A duly authenticated original or a duly certified copy of the award is required.

When the jurisdiction of the arbitral tribunal has been contested due to the alleged non-existence of the arbitration agreement, a duly authenticated original or a duly certified copy of the arbitration agreement is also required (see Q.12(a) above).

(d) How many originals or duly certified copies are required?

Only one original or duly certified copy is required, but additional copies must be supplied for each of the parties involved in the proceedings.

(e) Does the authority or court keep the originals that are filed?

In principle, yes. However, it is possible, to request the court to return the originals before a decision is granted once the court has verified them and made a certified copy thereof.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Source: Law 29/2015, of 30 July 2015, on International Judicial Cooperation on Civil Matters, Art. 54; Civil Procedure Law 1/2000 of 7 Jan. 2000, Art. 144.)

(b) If yes, into what language?

Spanish. In the Autonomous Communities where there is another official language, the party requesting recognition and enforcement has the option of translating the documents into this other official language instead.

(Source: Civil Procedure Law 1/2000 of 7 Jan. 2000, Art. 142.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Although Art. IV(2) of the New York Convention provides that the translation of the award and the arbitration agreement must be certified by a sworn translator or diplomatic consular officer, Art. 144 of the Civil Procedure Law (to which Art. 54 of Law 29/2015 on International Judicial Cooperation on Civil Matters expressly refers to) provides that non-certified translations may be submitted.

In accordance with Art. VII(1) of the New York Convention, a party seeking the recognition and enforcement of an award in Spain may rely on Art. 144 of the Civil Procedure Law to submit non-certified translations, unless another party challenges the translation.

In such a case, the court will require the document to be translated by a duly registered official Spanish translator. The cost of the translation is borne by the party submitting it. If an objection to the translation is found to be groundless, the objecting party will bear the cost of the official translation.

(Source: New York Convention, Arts. IV(2) and VII; Law 29/2015, of 30 July 2015, on International Judicial Cooperation on Civil Matters, Art. 54; Civil Procedure Law 1/2000 of 7 Jan. 2000, Art. 144 Civil Procedure Law)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

A full translation of the award is generally required. With regard to the contract containing the arbitration agreement, only the arbitration clause and the part of the contract identifying the parties usually need to be translated.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Spanish Courts have made use of the discretion provided for in Art. VI of the New York Convention and have stayed legal proceedings for recognition and enforcement in Spain pending the outcome of an application to set aside an award before the competent foreign authority.

(Source: Decision of the Court of First Instance No. 3 of Rubí, 11 July 2007.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for
recognition and enforcement (e.g. forum non conveniens)?

None.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

The court may make the granting of a stay of legal proceedings for recognition conditional upon the provision of suitable security by the party requesting the stay.

(Source: New York Convention, Art. VI; Arbitration Law 60/2003 of 23 Dec. 2003, Art. 45. Decision of the Civil and Criminal Chamber of the Superior Court of Justice of Catalonia, 15 Dec. 2016.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

In principle, documents filed in legal proceedings for recognition and enforcement form part of the public record. Spanish judges are empowered to decide that certain documents should be kept confidential to protect public order, national security, the rights of minors, the privacy of the parties, or as other rights and freedoms might require, or when there are special circumstances suggesting that publicity would jeopardize the interests of justice. In practice, judges apply these measures in a very restrictive manner.

(Source: Civil Procedure Law 1/2000 of 7 Jan. 2000, Arts. 140.3, 138.2.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If
not, can steps be taken to maintain the confidentiality of the legal proceedings?

The hearings are public, unless a judge orders that they remain confidential under the conditions described in Q.15(a) above.

(Source: Civil Procedure Law 1/2000 of 7 Jan. 2000, Art. 138.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

In principle, these decisions are published. Although it is not an established rule, names of individuals are generally removed or replaced by initials when decisions are published. However, when the parties are corporate entities, names are not usually removed.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Partial awards may be recognized and enforced in Spain as long as they are binding on the parties. Foreign interim awards should in principle be recognized and enforced in Spain, although there seems to be no case law on this issue.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

It is possible to obtain the recognition and enforcement in Spain of non-monetary relief ordered in foreign awards.

Once the award has been recognized, the Spanish court will order the debtor to comply with the non-monetary relief when ordering enforcement and, if the debtor fails to do so, is empowered to use various alternatives to secure enforcement: e.g. order a third party to comply with the award at the expense of the debtor if this option is in accordance with the nature of the obligation. If performance by a third party is not possible, Spanish courts may impose monthly fines on the defaulting debtor to compel compliance.

(Source: Civil Procedure Law 1/2000 of 7 Jan. 2000, Arts. 706 and 709.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

A party may obtain recognition and enforcement of only part of an award in Spain where that part of the relief granted is separable from other parts of the relief granted in the award.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Awards set aside in the country of origin of the award are generally not recognized in Spain pursuant to Art. V(1)(e) of the New York Convention. In its decision of 16 Nov. 2009 (clarified on 22 Dec. 2009), the Court of Appeal of Madrid, rejected a request for recognition and enforcement of a foreign award because, among other reasons, the effect of the award had only been suspended at the place of issuance of the award and an application to set aside the award was pending.

However, a foreign award set aside in the country of origin of the award may be recognized and enforced in Spain where it is found that the grounds on which it was set aside are contrary to Spanish public policy. This rule follows Art. IX(2) the Geneva Convention on International Commercial Arbitration, which limits the application of Art. V(1)(e) of the New York Convention to the grounds for setting aside set out in Art. IX(1) of the Geneva Convention. The Geneva Convention may be relied upon with respect to this rule as a more favorable international convention in accordance with Art. VII(1) of the New York Convention.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur: Alejandro López Ortiz