Published: January 2009
Procedure and Grounds for Setting Aside
Recourse Against Award Generally
Description: On March 25, 2008 the U.S. Supreme Court held in Hall Street Associates, L.L.C. v. Mattel, Inc. that the grounds to confirm, vacate or modify provided in §§ 10 and 11 of the Federal Arbitration Act are exclusive and therefore cannot be expanded by agreement of the parties. However, the Court did not address whether the parties may limit or waive those grounds.
The Hall Street decision raises the question whether the parties may agree to extend, restrict or waive the grounds for setting aside international arbitral awards in other jurisdictions. This article examines this question under Spanish law.
I. THE LEGAL FRAMEWORK
The Spanish Arbitration Act is based upon the UNCITRAL Model Law on International Commercial Arbitration. The Spanish Arbitration Act was explicitly intended to encourage international arbitration to take place in Spain. Thus, the Preamble states that “a country’s domestic legislation on arbitration must offer advantages or incentives to individuals and to corporations so that they opt for this method of dispute resolution and so that the arbitration will take place in that country and pursuant to its laws.”
The Spanish Arbitration Act refers to “definitive” and “final” awards, both terms indicating the res judicata effect of an arbitral award. This distinction in the two terms is only relevant for recourse purposes, where the term “final” is used to refer to an arbitral award that has exhausted every possibility of being challenged within the Spanish legal system.
*Senior Partner, B. Cremades y Asociados; Chairman of the Spanish Court of Arbitration (Corte Española de Arbitraje); member of the ICC Institute of World Business Law; member of the International Council for Commercial Arbitration.
**Associate, B. Cremades y Asociados; LLM, Queen Mary University of London.