Comparative Guides

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4. Results: Answers
International Arbitration
Grounds for challenging an award
What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

Answer ... According to Article 41.1 of the Arbitration Act, an arbitral award may be set aside only if the party making the application alleges and provides evidence of one of the following:

  • The arbitration agreement did not exist or was not valid;
  • The applicant was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings, or was otherwise unable to present its case;
  • The arbitrators decided on questions that were not submitted to arbitration;
  • The appointment of the arbitrators or the arbitration proceedings did not accord with the agreement of the parties, unless such agreement conflicted with a provision of the Arbitration Act from which parties cannot derogate, or, failing such agreement, did not accord with the act;
  • The arbitrators decided questions that are not arbitrable; or
  • The award conflicts with public policy.

The grounds referred to in the second, fifth and sixth bullets above may be determined by the court hearing the application to set aside the award on its own initiative or at the request of the attorney general, in the latter case where the dispute concerns interests whose defence is legally vested in this legal officer (Article 41.2).

In the cases referred to in the third and sixth bullet points above, the decision to set aside will affect only those aspects of the award that relate to questions not submitted to arbitration or non-arbitrable subject matter, provided that they can be separated from the remainder of the award (Article 41.3).

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
Are there are any time limits and/or other requirements to bring a challenge?

Answer ... Yes. An application to set aside must be filed within two months of the date on which the applicant received the award or, if a request to correct, clarify or supplement the award was made, from the date on which the applicant received the decision on that request or the date on which the term for making that decision expired (Article 41.4 of the Arbitration Act).

In addition, the court proceedings (Article 8.5 of the Arbitration Act) must follow the procedural rules foreseen in Article 42 of the Arbitration Act, which provides for the use of the summary or minor proceedings (juicio verbal), foreseen in the Civil Proceedings Act 2000 for smaller and other claims excluded from ordinary proceedings, with the adaptations set forth in that provision.

The ruling of the court that hears the challenge is not appealable (Article 42.2 of the Arbitration Act).

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
Are parties permitted to exclude any rights of challenge or appeal?

Answer ... The Arbitration Act does not foresee the exclusion of the right of challenge set forth in Article 41. The challenge is aimed at setting aside an award on several strict legal grounds specifically set out in that provision; an appeal based on breach of other provisions, whether substantial or procedural, is not possible under the Arbitration Act.

Nonetheless, on the grounds that the act does not expressly exclude appeal altogether, there is an understanding - accepted by the regulations of some courts of arbitration (eg, the Corte Española de Arbitraje) - whereby, although the appeal of an arbitral award before the courts is excluded by Article 7 of the Arbitration Act, an appeal before a second arbitral instance is not so excluded. This is based on the reasoning that the parties are entitled to set their own procedural rules and the inclusion of an appeal instance within the arbitration proceedings is definitely a procedural matter.

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
International Arbitration