Originally from American Review of International Arbitration - ARIA

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MODIFICATION BY AGREEMENT OF THE STATUTORY GROUNDS
TO SET ASIDE INTERNATIONAL ARBITRAL AWARDS IN SPAIN
Bernardo M. Cremades* & Alicia M.Blanco**
 

On March 25, 2008 the U.S. Supreme Court held in Hall Street Associates,
L.L.C. v. Mattel, Inc.1 that the grounds to confirm, vacate or modify provided in
§§ 10 and 11 of the Federal Arbitration Act2 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 international3 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.4 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.