Challenging and Enforcing Arbitration Awards: Spain

1. Must an award take any particular form?

Spain

Pursuant to the Spanish Arbitration Law, an award must:

• be in writing. This requirement will be considered met whenever the content and the signatures of the arbitrators are recorded so it may be accessed in the future;
• express the date and place of issuance;
• state the reasons on which the decision is based.
  • This requirement would not apply for those awards made by consent of the parties.
• include a decision on costs; or
• be signed by the arbitrators.
  • Whenever there is more than one arbitrator, the signatures of the majority of the members of the arbitration panel or of the chairman alone shall be sufficient, provided that the award states the reasons for the absence of the missing signatures;
• be delivered in the manner and within the time limit agreed by the parties. In the absence of agreement, the award shall be notified by delivering a signed copy to each party within six months following the statement of defence. The arbitrators may extend this time limit for two additional months, stating the reasons for such extension.

Without prejudice to the above, failure to meet the time limit will not affect the validity of the award, but may entail liability of the arbitrators.

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Spain

An award may be:

• corrected, in the event that there is a miscalculation, a typographical mistake or other errors of similar nature;
• clarified, if there is a point that cannot be properly understood;
• supplemented, in the event that petitions by the parties have not been addressed and resolved; or
• rectified, if there is an ultra vires decision.

The arbitrators may correct the award ex officio within 10 days of its delivery.

The parties may file a petition for the correction, clarification, supplementation or rectification of the award with the arbitrators within 10 days of its delivery in domestic arbitration (one month in international arbitration).

The arbitrators, after hearing the other parties, shall decide on requests for correction and clarification within 10 days in domestic arbitration (one month in international arbitration), and on requests for supplementation and rectification within 20 days in domestic arbitration (two months in international arbitration).

In addition, the parties may apply for the revision of an award rendered in Spain before the Spanish Supreme Court in the following cases:

• if decisive documents are recovered or obtained after the award was rendered, provided that such documents were not available due to force majeure;
• if the award is rendered on the basis of documents that had been declared false by a court in criminal proceedings; or
• if the award is rendered with bribery, duress or fraud.

An application for revision must be filed within five years of the delivery of the award and, in any event, within the following three months upon the discovery of the facts that will give ground for applying for the revision.

Upon completing all the procedural steps, the Spanish Supreme Court will render a judgment. If the application is upheld, the award is rescinded. The parties may initiate new arbitration proceedings but all declarations included in the review judgment shall be considered res judicata.

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Spain

An award cannot be appealed before the courts but may be appealed if and when the parties has expressly agreed to have an appeal with another arbitral tribunal.

The parties can apply to set aside the award on limited grounds, as envisaged in the Spanish Arbitration Law. In these set-aside proceedings, the court shall not review the conclusions reached by the arbitrators or the legal reasoning included in the award.

4. Is there a time limit for applying for the setting aside of an arbitral award?

Spain

The parties may apply for the setting aside of an arbitral award within two months of its delivery.

It there had been any application for correction, clarification, supplementation or rectification, then the parties may apply for the setting aside of the award within two months of the delivery of the decision on such application.

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Spain

Any award is eligible for setting aside. The Spanish Arbitration Law expressly envisages the possibility of setting aside awards on jurisdiction and decisions on interim measures.

Procedural orders are not eligible for setting aside.

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Spain

The Superior Court of Justice of the place of the arbitration is the court with jurisdiction for the setting aside of an arbitral award.

There is no specific court or chamber in place with specific sets of rules applicable to international awards.

7. What documentation is required when applying for the setting aside of an arbitral award?

Spain

The claim shall enclose the arbitral clause, the award and any other documents supporting the petition for setting aside. The claimant can file simple copies of the documents. However, the defendant may challenge the accuracy or the authenticity of the copies. In that case, the court will order the claimant to submit the original or a duly certified copy for a cross-check.

The claim shall also list all evidence proposed to be heard at the trial.

The claimant must submit additional copies of the claim and the documents, one for each party.

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Spain

Any documentation drafted in other than Spanish or an official language in the corresponding region must be submitted jointly with a translation.

Courts normally accept translations of excerpts, without the need to submit full translations of the documents. However, if the opposing party argues that the lack of a full translation is hindering its right of defence, the court would stay the proceedings and order the party to submit full translations.

It is customary, but not mandatory, to submit certified translations by a sworn translator.

If simple translations are submitted, the opposing party may challenge the accuracy of the translation. The court would then order a certified translation by a sworn translator. The costs of the certified translation shall be borne by the party that submitted the document. However, if the certified translation results substantially identical to the simple translation, the party who challenged the translation will be ordered to bear the costs.

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Spain

The claimant and the defendant need to be represented in the proceedings by a court representative (procurador). The court representative fees are regulated by law and depend on the amount in dispute.

The court representative must be duly empowered to represent the party. The power may be granted before a notary public or directly with the court.

Also, the claimant and the defendant need to be assisted by a lawyer authorised to practise before the Spanish courts. Lawyers’ fees are freely negotiated.

If the claimant is a company or a legal entity, it would also need to pay a judicial tax of €150 at the time of filing the claim.

Submissions must be filed in Spanish (or, alternatively, in the official language in the corresponding region).

The claim must include the particulars identifying the plaintiff and the defendant and the address at which they may be notified, the facts and grounds of the case, the amount in dispute and the relief sought.

There is no limitation on the length of the submissions and of the documents that the parties may file.

10. What are the different steps of the proceedings?

Spain

After the claim has been filed, the court will admit the claim and serve it to the defendant.

Upon service, the defendant will have 20 working days to submit its response with all the documents supporting its position and listing all evidence it intends to use at the trial.

The claimant will be given an opportunity to submit additional documents or to list additional evidence to be used at the trial.

The court will only summon the parties to a trial hearing if it is necessary to hear evidence. In such a case, the parties will examine the witnesses and/or experts. The party proposing the evidence shall examine the witness/expert in first place and, afterwards, the opposing party shall carry out a cross-examination. The magistrates may ask additional questions at any time. Once all the evidence has been heard, the parties will submit oral closing statements.

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Spain

Arbitral awards rendered in Spain do not need to be recognised and are directly enforceable with the Spanish courts.

Setting aside proceedings do not have a suspensive effect. However, the court enforcing the award may stay the proceedings if and when a party has applied for the setting aside of the award and provides security for the value of the award plus any damages deriving from the delay in enforcing the award by making a deposit at the court’s bank account or posting a first demand bank guarantee.

12. What are the grounds on which an arbitral award may be set aside?

Spain

The award may be set aside only if the party seeking setting aside proves that:

• the arbitration agreement did not exist or is invalid;
• the party was not duly notified of the appointment of an arbitrator or of the arbitral proceedings or was not able to assert its rights;
• the arbitrators have ruled on matters not submitted to them;
• the appointment of the arbitrators or the arbitral proceedings was not compliant with the agreement by the parties or, in the absence of such agreement, that it was not compliant with the provisions of the Spanish Arbitration Law;
• the arbitrators ruled on matters not subject to arbitration; and
• the award is contrary to public policy.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Spain

If the setting aside application is upheld, the award (or certain items of the award) is deemed rescinded and the parties may initiate new arbitration proceedings (if appropriate).

Judgments on setting aside proceedings are final and are not eligible for appeal. Nevertheless, the party affected by the judgment may file a constitutional appeal (recurso de amparo) before the Spanish constitutional court on the basis that its fundamental rights have been infringed.

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Spain

The Spanish courts shall decide on the setting aside application taking into consideration the evidence submitted and the provisions set forth in the Spanish Arbitration Law.

Spanish courts may take into consideration any decision rendered in recognition or enforcement proceedings in other jurisdictions, but should not give effect to them.

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Spain

Recognition of arbitral awards is governed by the 1958 New York Convention (without prejudice to other treaties that may be more favourable to the recognition of the award).

The proceedings to apply for the recognition of an award are set forth in the Law on International Legal Cooperation in Civil Matters.

Spain is a party to treaties relating to recognition and enforcement such as the 1958 New York Convention, the 1961 European Convention on International Commercial Arbitration (Geneva Convention), the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington Convention) and several bilateral treaties.

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Spain

Spain is a party to the 1958 New York Convention. The Convention entered into effect in Spain on 10 August 1977. Spain made no reservations or declarations.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Spain

Any application for the recognition or the enforcement of an arbitral award must be made within the following five years of the date it becomes final.

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Spain

Arbitral awards rendered in Spain do not need to be recognised and they are directly enforceable.

The competent court to recognise a foreign award would be the Superior Court of Justice of the region (comunidad autónoma) where the opposing party is domiciled, or, if the opposing party is not domiciled in Spain, where the award shall be enforced or be effective.

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Spain

The Spanish Arbitration Law does not include any requirements for the court to have jurisdiction over an application for recognition.

However, in a recent decision, the Superior Court of Justice of the Basque Country decided that it lacked jurisdiction over the application for recognition since the claimant failed to identify assets within the jurisdiction of the court of enforcement (ATSJ Pais Vasco 104/2021, of 1 March 2021). This decision is not without controversy, so other Superior Courts of Justice may not apply this criterion when analysing their jurisdiction.

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Spain

The recognition proceedings are adversarial and are initiated by an application by the claimant. The defendant may file an opposition within 30 days following service of the application.

The Law does not envisage an oral phase in the proceedings. Nevertheless, the Spanish courts summon the parties to a hearing when they consider it necessary.

The public prosecutor's office shall participate in the recognition proceedings by filing a report and by appearing at the hearing (if any).

21. What documentation is required to obtain recognition?

Spain

Pursuant to article IV of the 1958 New York Convention, the party applying for recognition must submit:

• the duly authenticated original award or a duly certified copy thereof;
• the original arbitration clause or a duly certified copy thereof.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Spain

Pursuant to article IV of the 1958 New York Convention, the party applying for recognition must submit a translation of the documents into Spanish (or an official language in the region).

The translation shall be certified by a sworn translator or by a diplomatic or consular agent.

A full translation is required.

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Spain

The claimant and the defendant need to be represented in the proceedings by a court representative (procurador). The court representative fees are regulated by law and depend on the amount in dispute.

The court representative must be duly empowered to represent the party. The power may be granted before a notary public or directly with the court.

Also, the claimant and the defendant need to be assisted by a lawyer authorised to practise before the Spanish courts. Lawyers’ fees are freely negotiated.

Submissions must be filed in Spanish (or an official language in the corresponding region).

The claim must include the particulars identifying the plaintiff and the defendant and the domicile or residence at which they may be notified, the facts and grounds of the case, the amount in dispute and the relief sought, clearly and precisely stated.

There is no limitation on the length of the submissions and of the documents that the parties may file.

24. Do courts recognise and enforce partial or interim awards?

Spain

Spanish courts recognise and enforce partial and interim awards.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Spain

The grounds to refuse recognition of an arbitral award are those provided in the New York Convention. In essence, the Spanish courts may refuse recognition to an arbitral award if the claimant provides proof that:

• the parties lacked capacity or the arbitration agreement was not valid;
• the appointment of the arbitrator or the arbitration proceedings were not properly notified or the party was otherwise prevented from presenting its case;
• the award includes an ultra vires decision;
• the appointment of the arbitrators did not follow the agreement of the parties or there was a breach of due process;
• the award is not binding (yet) or it has been stayed or set aside by a competent authority;
• the matter decided in the award is not eligible for arbitration; and
• the recognition would be contrary to the public policy.

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Spain

Upon the decision recognising the arbitral award, the claimant may apply for enforcement of the award with the competent first instance court.

A decision recognising an arbitral award in Spain is final and is not eligible for appeal. Nevertheless, the party affected by the judgment may file a constitutional appeal (recurso de amparo) before the Spanish constitutional court on the basis that its fundamental rights have been infringed. Such constitutional appeal does not have suspensive effect, but the constitutional court may grant the suspension of the enforcement proceedings as an interim measure.

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Spain

A decision refusing recognition of an arbitral award in Spain is final and is not eligible for appeal. Nevertheless, the party affected by the judgment may file a constitutional appeal (recurso de amparo) before the Spanish constitutional court on the basis that its fundamental rights have been infringed.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Spain

The existence of setting aside proceedings at the seat of the arbitration does not automatically stay the recognition proceedings.

The defendant may request to suspend the recognition proceedings pending the decision in the setting aside proceedings at the seat of the arbitration, invoking lis pendens or related actions pursuant to the provisions of the Law on International Legal Cooperation in Civil Matters. The Court shall obtain an opinion by the public prosecutor office and decide upon such request. Ultimately, the decision is discretionary.

Spanish courts have recently recognised foreign awards pending setting aside actions in the seat of the arbitration (ATSJ Madrid 14/2018, of 23 January 2018, ATSJ Murcia 12/2019, of 12 April 2019). The courts considered that the award was final and binding to the parties, that there was no decision adjourning the effects of the awards and that the 1958 New York Convention does not contemplate the stay of recognition proceedings.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Spain

The Law on International Legal Cooperation in Civil Matters does not require any security in order to grant the suspension of proceedings due to lis pendens or related actions.

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Spain

Pursuant to article V.1(e) of the 1958 New York Convention, Spanish courts should not recognise foreign awards that have been set aside at the seat.

Notwithstanding the above, when the arbitration involves two parties from contracting states of the 1961 European Convention on International Commercial Arbitration (Geneva Convention), such convention shall apply. The Geneva Convention expressly provides that the courts shall only refuse recognition when the setting aside of the award at the seat is based on the following reasons:

• lack of capacity of one of the parties or invalidity of the arbitration agreement;
• failure to notify the appointment of the arbitrator or of the arbitration proceedings to the defendant or breach of due process resulting in a party being prevented from presenting its case;
• existence of an ultra vires decision; or
• breach of the process to appoint the arbitrators (as agreed by the parties or as applicable pursuant to the Convention).

Our legal system does not envisage any specific remedy in case an award is set aside at the seat of the arbitration after its recognition by the Spanish courts.

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Spain

Extrajudicial documents are usually served via burofax (mail with proof of receipt and certification of content) or via a notary public.

Judicial documents are served by court officials at the defendant’s address provided by the claimant.

If the defendant is not found at the address provided in the claim, the claimant shall apply to the court for investigative measures to obtain further addresses for the defendant. If and when all investigative measures have been exhausted and service has not been effected, the court will serve the judicial documents by publication at the court’s board (edictos).

Without prejudice to the above, the claimant may request the court to delegate service on its court representative (procurador). In such cases, the court representative must personally deliver the judicial documents to the defendant’s address.

Documents filed with a Spanish court drafted in a language other than Spanish or an official language in the corresponding region must be submitted jointly with a translation. However, failure to do so may not prevent the documents from being served.

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Spain

The procedure will depend on the state where service is to be effected.

Whenever documents must be served in a member state of the European Union, Regulation 1393/2007 applies and service may be effected:

• by the relevant receiving agency designated by the corresponding member state in accordance with the Regulation, which shall have the documents served;
• directly through its diplomatic or consular agents;
• by registered letter with acknowledgment of receipt or equivalent; or
• if allowed in the jurisdiction of the recipient, directly by the judicial officers, officials or other competent persons to effect service in that jurisdiction.

The addressee may refuse service if the documents are not drafted or accompanied with a translation in a language that the addressee understands; or in the official language of the relevant member state (or the region, as the case may be).

The European Parliament and the Council has adopted a new regulation on service of judicial and extrajudicial documents in civil or commercial matters (Regulation 2020/1784), which will enter into force and repeal Regulation 1393/2007 on 1 July 2022. Regulation 2020/1784 is a recast that does not envisage material amendments in connection with the above.

Spain is also a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), so whenever documents must be served to a defendant in a state that is not a member state of the European Union but a party of the Hague Service Convention, service may be effected:

• by the Central Agency designated by the relevant state in accordance with the Hague Service Convention, upon request by the courts.
  • The Central Agency may request that the application and the documents be written in, or translated into, the official language of the state.
• directly through consular agents;
• providing the relevant state has not make a reservation:

1. • by postal service; 
   • upon request from the Spanish courts, by the judicial officers, officials or other competent persons to effect service in that jurisdiction; or
   • upon request from the interested party, directly by the judicial officers, officials or other competent persons to effect service in that jurisdiction.

In addition, Spain is a party to several bilateral treaties for service of extrajudicial and judicial documents.

Finally, in defect of treaty, the Law on International Legal Cooperation in Civil Matters shall apply. Pursuant to this Law, the Spanish courts may transmit requests for service of documents abroad:

• through the Ministry of Foreign Affairs, which shall forward them to the competent authorities of the relevant state by consular or diplomatic channels, or through its central authority (if applicable); or
• directly to the competent authority of the requested state.

Also, the Spanish authorities may effect service by registered post or equivalent means with of proof of receipt (providing the state where service shall be made does not forbid this alternative).

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Spain

In Spain, the real state register, the commercial register, the movable property register, the national trademark register, the European trademark register and the patent and industrial property register are publicly available.

Annual accounts may include information on the company’s interests in other companies and are publicly available at the commercial register.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Spain

The creditor may ask the court for investigative measures within the enforcement proceedings to locate assets and rights belonging to the debtor. To this extent, the court, upon request of the creditor, may demand information from financial institutions, public bodies and registers and natural and legal persons to obtain a list of the assets or rights of the debtor.

The court may also order the debtor to provide a list of assets and rights that may be attached and garnished in order to repay the debt. Failure to comply may result in a criminal offence.

35. What kinds of assets can be attached within your jurisdiction?

Spain

In Spain, all assets and rights may be attached, but for the following exceptions:

• domestic pets;
• assets declared inalienable or unattachable by a legal provision or a treaty signed by Spain;
• ancillary rights that cannot be alienated independently of the principal;
• assets without any patrimonial content;
• furniture and household goods, clothes, food, fuel and others that are essential for the subsistence of the debtor and its dependants;
• instruments necessary for the exercise of the profession, art or trade of the debtor, when their value is not in proportion to the amount of the debt claimed;
• sacred property and property dedicated to the worship of legally registered religions; or
• salaries and wages, up to the amount provided by law (pursuant to a table).

36. Are interim measures against assets available in your jurisdiction?

Spain

The claimant in any proceedings may apply with the court for attachment over the debtor’s assets as interim measures.

The court shall grant such attachments provided that the applicant justifies (i) a prima facie right and (ii) a risk that the future decision will be rendered ineffective without the interim measures. The applicant also needs to post security to cover the damages suffered by the defendant, in case the interim measures are revoked at a later stage.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Spain

The applicant may apply for attachments over assets belonging to the debtor. The court will decide over such petition and grant (or not) the interim measures requested.

As a general rule, the court shall summon the debtor to a hearing before deciding over the application. However, proceedings may be ex parte, providing the applicant can justify the existence of special urgency (with a risk that the debtor will conceal its assets, if given previous notice of the proceedings).

If the proceedings are conducted ex parte, the debtor will have the chance to file an opposition to the interim measures within the following 20 days of service of the decision. After such opposition, the court will summon both parties to a hearing and will decide whether to maintain or withdraw the interim measures.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Spain

Once the attachment has been granted by the court, it can be registered with the real property register. The applicant will have to pay duty stamp tax.

39. What is the procedure for interim measures against movable property within your jurisdiction?

Spain

Once the attachment has been granted by the court, the court will draw up an inventory with a description of the main characteristics, state of use and conservation of the assets and may appoint a depositary to take possession of the assets. The depositary may be the creditor, the debtor or a third party (depending on several factors).

In addition, the attachment may be also registered at the movable property register, if applicable (providing the asset is eligible for registration at said register). The applicant will have to pay duty stamp tax.

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Spain

Once the attachment has been granted by the court, it can be registered with the relevant register, as appropriate. The applicant will have to pay duty stamp tax.

41. What is the procedure to attach assets in your jurisdiction?

Spain

Within the enforcement proceedings, once the court has issued a general order of enforcement, the court clerk shall order attachments over the assets identified by the creditor.

The proceedings are ex parte, but the debtor may file a procedural appeal with the court clerk against the decision granting the attachments. The decision by the court clerk may be appealed with the court.

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Spain

The attachment must be registered with the real property register. The creditor will have to pay duty stamp tax.

After that, in defect of agreement by the parties over the value of the asset, the court will appoint an expert to appraise the immovable property. The expert may require a provision of funds.

The expert will submit a report appraising the asset at market value. Both the creditor and the debtor may file pleadings with the court clerk who then will render a decision determining the value of the asset for the purpose of the enforcement proceedings.

The asset will then be realised:

• as per the agreement of the parties, if approved by the court clerk once verified that the agreement does not harm the rights of third parties and the projected proceeds are higher than those to be expected to be obtained in a public auction;
• by a real estate agent or agency; or
• in a public auction.

All costs in the enforcement proceedings shall be paid by the creditor but can be recovered from proceeds obtain in the proceedings.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Spain

The court will draw up an inventory with a description of the main characteristics, state of use and conservation of the assets and may appoint a depositary to take possession of the assets. The depositary may be the creditor, the debtor or a third party (depending on several factors).

In addition, the attachment may be also registered at the movable property register, if applicable (providing the asset is eligible for registration at said register). The creditor will have to pay duty stamp tax.

The asset will then be appraised and realised as per the same proceedings explained in question 42, for immovable property.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Spain

The attachment must be registered with the relevant register, as appropriate. The creditor will have to pay duty stamp tax.

The asset will then be appraised and realised as per the same proceedings explained in question 42, for immovable property.

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Spain

If the court grants attachments of favourable balances in accounts of any kind opened in banks or financial institutions, the court clerk will order the withholding of the amounts.

The financial institution must freeze the account upon receiving the order and inform the court of the amounts in all the bank accounts. Afterwards, the relevant amounts shall be transferred into the court’s bank account.

The courts can grant attachments over sums deposited in bank accounts opened in any branch or subsidiary located in Spain.

It is not clear whether the courts have jurisdiction to grant attachments over bank accounts opened in branches located abroad of domestic banks or of foreign banks with a Spanish branch, since branches are not a separate entity. In practice, the outcome will mainly depend on the criteria of the court of enforcement.

In principle, the creditor should not be able to obtain attachments over sums deposited in bank accounts opened in subsidiaries of banks (whether domestic or foreign) located abroad, since subsidiaries are a separate legal entity and the jurisdiction of the Spanish courts is limited to the national territory.

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Spain

There are no specific rules governing recognition and enforcement of arbitral awards against foreign states.

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Spain

Any judicial communication addressed to a foreign State shall be made through diplomatic channels via the Ministry of Foreign Affairs, and must be communicated by note verbale and in accordance with the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961.

Service shall be deemed to have been effected two months after the date appearing on the service of process or on the receipt thereof.

Spanish courts may require the translations of the documents before requesting the assistance of the Ministry of Foreign Affairs.

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Spain

When a foreign state agrees to submit any dispute relating to a commercial transaction to arbitration, it cannot assert immunity later before the Spanish courts in proceedings relating to the recognition of the award.

49. May award creditors apply interim measures against assets owned by a sovereign state?

Spain

The Spanish courts cannot grant interim measures against assets owned by a state unless the state has expressly consented to those measures or has allocated property for the satisfaction of the claim.

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Spain

The Spanish courts cannot adopt any enforcement measures against property of a foreign state unless:

• the state has expressly waived immunity from enforcement;
• the state has allocated property for the satisfaction of the claim that is the object of that proceeding; or
• the assets:

1. • are specifically in use or intended for use by the state for other than government non-commercial purposes;
   • are in Spain; and
   • have a connection with the state against which the proceeding was directed.

The court may attach assets intended for an activity other than the one that gave rise to the dispute.

The following categories cannot be considered as assets “in use or intended for use by the state for other than government non-commercial purposes”:

• property, including any bank account, which is used or intended for use in the performance of the functions of the diplomatic mission of the state or its consular posts, special missions, missions to international organisations or delegations to organs of international organisations or to international conferences;
• property of a military character or used or intended for use in the performance of military functions of the state;
• property of the central bank or other monetary authority of the state;
• property forming part of the cultural heritage of the state or part of its archives, or part of an exhibition of objects of scientific, cultural or historical interest, providing they are not intended to be placed on sale; and
• vessels and aircraft belonging to the state.

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Spain

A foreign state can waive immunity from enforcement:

• by international agreement;
• by a written contract; or
• by a declaration before the court or by a written communication in the proceedings.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Spain

Article 17.2 of the Organic Law on Privileges and Immunities of Foreign States requires that the assets “have a connection with the State against which the proceeding was directed”.

Spanish courts have traditionally have taken a broad approach when determining the existence of a connection of assets with the state (eg, STC 176/2001 of 17 September 2001).

Spain has ratified the United Nations Convention on Jurisdictional Immunities of States and their Property, made in New York on 2 December 2004. The United Nations Convention is not in force, since it has not been ratified by 30 states yet, as required by the Convention. Nevertheless, the Supreme Court has recently express that the Convention “can serve as an important point of reference when interpreting the rules in place, as many courts of first instance have been doing in practice” (TS 517/2019 of 3 October 2019).

Article 19(c) of the United Nations Convention requires that the assets attached “have a connection with the entity against which the proceeding was directed”. Spain made no reservation to this provision, which may conflict with article 17.2 of the Organic Law on Privileges and Immunities of Foreign States. Consequently, the broad approach traditionally taken by the Spanish courts may be limited in the future, if and when the United Nations Convention enters into force.

Nevertheless, it is worth mentioning that the Understandings annexed to the Convention expressly clarify that the term “connection” is to be understood as broader than ownership or possession.

Furthermore, the Understandings also clarify that article 19(c) of the United Nations Convention does not prejudge the question of "piercing the corporate veil", questions relating to a situation where a State entity has deliberately misrepresented its financial position or subsequently reduced its assets to avoid satisfying a claim, or other related issues.

Consequently, Spanish courts may attach assets belonging to an entity of the foreign state different to the one the proceedings was directed, providing that the creditor can justify that the assets are connected to the latter entity or that there are reasons to “pierce the veil” due to fraud or related issues. Decisions will be made on a case-by-case basis.