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Document information Chapter 6: Communications, Service and Computation of

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§6.01 SERVICE AND COMMUNICATIONS
Arbitration in Spain
[A] General Scheme
6.1. The principle governing the area of communication and service in arbitration – both
Jurisdiction domestic and international – is based on the principle of party autonomy. Article 5 AA
expressly recognizes this: Except as otherwise agreed by the partiesand excluding
Spain communications issued as part of court proceedings. The case law upholds, without
exception, the same principle in this area. (1) The limit to this principle is evident with
respect to Article 24 of the Constitution.
Bibliographic reference This starting point is common both to comparative law and the guiding provisions
'Chapter 6: governing arbitration regulations of the most relevant international institutions.
Communications, Service 6.2. Only for the cases in which the parties: (i) so wish; (ii) do not reach an agreement on
and Computation of Time the form of notifications – how, when and where they are considered served; or (iii) are
Limits', in Miguel Gómez not within the framework of an institutional arbitration, then what is established in Article
Jene , International 5 paragraph a) comes into play, in virtue of which:
Commercial Arbitration in
Spain, (© Kluwer Law a) Any written communication is deemed to have been received on the day it
International; Kluwer Law is delivered to the addressee personally or to his place of business, habitual
International 2019) pp. 75 - residence or mailing address. Moreover, notices or communications may be
84 validly sent by telex, fax or other electronic telecommunication methods or
similar specified by the party concerned that ensure the traceability of
statements or documents sent and received. If none of the aforementioned
places can be found after making a reasonable inquiry, a written
communication is deemed to have been received on the day it is delivered to
P 76 or delivery is attempted at the addressee’s last-known place of business,
habitual residence or mailing address by registered letter or any other means
establishing a record of attempted delivery.
6.3. The system established by this subsection has a high degree of flexibility quite
distinct from the general notification system that governs the general area of litigation.
Therefore, correct interpretation of this clause means that the procedural criteria
established by the CPA must be set to one side because, in arbitration, the freedom of
the parties to consent is paramount.
This reasoning that lies behind arbitral service procedure was not fully grasped in the
first cases that attempted to interpret Article 5 AA. In fact, at the time this Article was
challenged on grounds of its alleged unconstitutionality, (2) though the matter was not
proceeded with. (3) In essence, the PC that raised this issue interpreted the matter in an
opposite sense to the provisions of the Spanish Constitution as the requirements for the
service of arbitral awards were in fact less onerous than the equivalent requirements
governing service of decisions handed down by the courts. In this fashion it was alleged
that Articles 9, 14 and 24 of the Constitution – legal security, equality and effective
judicial protection – were violated. In response to this constitutional challenge, the CC
was of the view that the impugned rule is: ‘a clear rule that does not affect either the
objective aspect – certainty – or the subjective aspect – predictability – of the principle
of legal certainty, since it is clearly drafted in terms of its content and scope’. Faced with
the alleged breach of the principle of equality, the CC was of the view that: ‘the
substantive differences between both types of resolution are ignored’. In the face of the
alleged violation of the constitutional right to effective judicial protection, the CC has
indicated that, given the circumstances of the case: ‘[the defendant] was only required to
meet the minimum rules of procedural requirements, communicating, if necessary, the
change of address’.
The CC’s dismissal of the challenge is not only important for definitively clarifying the
scope of freedom of consent in relation to arbitral notification; it is also important
because it establishes the basis for a correct interpretation of the AA. In this regard the
CC was adamant as to what criteria govern arbitration and clear in its ruling that these
must be complied with when interpreting the rules that govern arbitration:
it should be noted that the arbitral award is the result of a procedure whose
legitimacy is anchored in the arbitration agreement; in such a way that what is
set forth in the challenged provision not only is an attempt to save the
position of those who act in good faith, but also embraces contractual or
conventional good faith (Article 1258 CC).
6.4. In light of the above constitutional jurisprudence, Article 5 AA can be interpreted as

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 follows:
Personal notification or service is valid no matter where it occurs. This is relevant,
because evidence of service must be forthcoming in the event of a possible annulment or
P 77 enforcement action. If it is not carried out personally, it must be performed – unless
the parties agree otherwise – in the domicile, habitual residence, establishment or
address of the recipient. It is not necessary that the notice be delivered to the party
specifically involved in the arbitration, as this can also be done before their
representative.
For its part, the Agreement on unified criteria of the Madrid PC (4) established at the time
that: the notification [of the award] is to be delivered to the domicile, habitual
residence, establishment or address of the interested party without the need for it to be
collected by the interested party.
Neither the AA nor international commercial arbitration practice require a guarantee viz.
knowledge of the contents thereof. Therefore, the conclusion could be drawn that the
mere presumption of knowledge would be enough to consider the procedure fulfilled.
However, given the overall significance of this issue (as is evident in demonstrating
respect for the right to mount a defence), and in the absence of considerations
concerning the parties’ freedom to consent, it would seem prudent to be guided, as far as
possible, by the criteria outlined in the decisions of the CJEU.
Thus:
‘A fortiori, in a situation such as that in the main proceedings, where the
defendant did not appear at the hearing initiating proceedings, the date of
which was specified in the document served on him by post, it is of paramount
importance to ensure, first, that the defendant has actually received the
document instituting the proceedings, so that he is aware that judicial
proceedings have been brought against him in another Member State and can
identify the subject-matter and the grounds of the claim, and, secondly, that
he had sufficient time to prepare his defence’. Furthermore: ‘if a third party
can validly accept a judicial document in the name and on behalf of the
addressee, that possibility must nevertheless be reserved for clearly defined
situations, to ensure that the rights of the defence of that addressee are
observed as fully as possible’. Finally: ‘the possibility for a third party to
accept a judicial document instead of his addressee can only apply to adults
who are inside the residence of the addressee, whether they are members of
his family living at the same address as him or persons employed by him at
that address’. (5)
6.5. The form of the notification does not have to comply with specific requirements. It is
sufficient that it identifies the sender and recipient, the place of delivery and the
purpose of same. Any medium that records the issue and reception is admissible; without
order of preference.
6.6. In exceptional cases of change of address without further communication of this
data, the sender is required to make endeavours to ‘reasonably inquire’ as to the new
whereabouts of the recipient. In the opinion of the author, this factual inquiry is not fully
comparable to the ‘due diligence’ required by the court who must resort to service by
P 78 publication. (6) To demand such strict standards would be to go against the spirit of
the legislation. Therefore, the sender must resort to those channels that: (1) are within the
range of available options; and (2) involve costs proportionate to the disputed data: i.e.,
internet networks, registry queries and/or entities or chambers of commerce.
The above measures are compatible with constitutional jurisprudence on this point.
Therefore, if the party who changed their domicile is a party to arbitration proceedings
and has raised allegations: ‘then that party is required to behave consistently with the
minimum rules of procedural diligence, communicating, as the case may be, any change
of address. Then any subsequent lack of “procedural” good faith in the defence strategy
will only end up being attributable to the defendant.’ (7)
For its part, the Agreement on unified criteria set forth by the PC of Madrid (supra) also
established that what amounts to ‘reasonable inquiry’ in establishing an address must be
evaluated in accordance with the circumstances of each case, but should contemplate
examining public registries for the purposes of obtaining the relevant data to facilitate
location of the interested parties’ domicile. Recent case law has indicated that, if the
domicile of the parties is agreed upon as the place where notification is to be achieved,
then serving notice at the address of the legal representatives – without prior inquiry as
to the domicile of the parties – would justify annulment of the award. (8)
6.7. There is some debate as to which party must perform this ‘reasonable inquiry’,
because while one view supported by some case law indicates that the responsibility
falls on the arbitrator, there is also support for the view that this responsibility
exclusively belongs to the other side. In this regard, the answer is conditioned by several
circumstances: inter alia, whether or not it is a consumer arbitration; or an institutional
arbitration. Thus, for example, while in the field of consumer or institutional arbitration
the arbitrator – together with the institution – must assume a relevant role; in the context

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 of an ad hoc arbitration, that role must be assumed by the other side. It is the case then,
that in such circumstances the arbitrator is not under any obligation to investigate the
whereabouts of any of the parties; the arbitrator has to accept what the parties tell him
in this regard. (9)
In the area of consumer arbitration, case law requires that such reasonable inquiry be
undertaken by the arbitrator or the institution administering the arbitration. (10) Note,
however, that these considerations are quite distinct from those that arise in the field of
international commercial arbitration.
6.8. Finally, and although Article 8 AA does not expressly provide for it, the courts also
have power to effect service. To deny this would arguably constitute a violation of the
P 79 provisions set forth in Article 24 of the Constitution (effective judicial protection). That is
why a study – even a summary one – of the international instruments that may be
applicable in this context is required.

[B] The European Notification Regulation

6.9. From an international perspective, the option of having the arbitrators seek court
assistance to serve the relevant notifications needs to be considered. In this regard,
various international instruments may be applicable.
In normal circumstances it will not be necessary to resort to these provisions; given that
in the event it is an institutional arbitration, then the regulations of the institution itself
will preside over the matter under dispute. On the other hand, if it is an ad hoc
arbitration where the parties have not reached an agreement as to what rules apply, then
the option of having recourse to the above may be in both parties’ best interests.
6.10. Thus, the following EU Regulation is applicable to service between Member States
(with the exception of Denmark): Regulation (EC) No 1393/2007 of the European
Parliament and of the Council of 13 November 2007 on the service in the Member States
of judicial and extrajudicial documents in civil or commercial matters (service of
documents),repealing Council Regulation (EC) No 1348/2000. (11)
The applicability of this Regulation to arbitration is not open to question. First, because
it is the subject matter which the arbitration decides on and not the arbitration itself,
which imposes limits on the scope of its application (the relevant case law is Van Uden
(12) ). Second, because it is not the arbitrator who serves the notification directly, but
rather this assistance is provided by the authorities of the host country where the
arbitration is based through transmitting agencies – who have authority to serve within or
outside the jurisdiction to another Member State. And third, because the judgments of
the CJEU in interpreting this Regulation have embraced a wide scope of application. The
most relevant case in this regard, is the judgment of the CJEU in Tecom. (13)
The circumstances that formed the basis of this judgment, involved the application of the
Regulation to serve a letter of formal notice in another Member State. While there was no
generally accepted procedure at that time, the document in question is classified as an
extrajudicial document and the application of the Regulation to this type of document is
considered. The CJEU affirming that: ‘the concept of an “extrajudicial document” referred
to in that article encompasses not only documents drawn up or certified by a public
authority or official but also private documents of which the formal transmission to an
addressee residing abroad is necessary for the purposes of exercising, proving or
safeguarding a right or a claim in civil or commercial law’. This interpretation – the CJEU
insisted: ‘contributes to the proper functioning of the internal market’.
P 80
6.11. Having upheld the applicability of the above Regulation to arbitrations that deal
with matters included in its scope of application, it is important to highlight the general
lines of the legislation:
(1) The Regulation provides several means of service, none of which takes precedence
over any other; in fact, to serve the same notification, two or more means can be
used simultaneously. (14)
(2) These means are: direct service to the recipient by mail with acknowledgment by
receipt; service through consular or diplomatic authorities; service through the
appropriate transmitting and receiving agencies designated by each Member State;
or, service undertaken by any person with an interest in the arbitration (Articles 4,
12–15).
(3) The addressee may refuse to accept the document to be served at the time service
is attempted or by returning the document to the receiving agency within one week
if it is not written on, or accompanied by a translation into the languages which the
addressee understands or the official language of the Member State addressed
(Article 8). In this case, however, the sender has the option of correcting it by
sending the required translation. (15) The freedom of the parties to give their
consent is also important in this context (e.g., if they have agreed to provide
notifications in a specific language).

[C] The Hague Convention on Service

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 6.12. Matters concerning communications with Non-Member States are governed by the
Convention on the Service abroad of judicial and extrajudicial documents in civil or
commercial matters, concluded in the Hague, 15 November 1965.
In its application, the arbitrator does not attempt to serve directly, but must proceed by
contacting the Central Authority of the country where the arbitration has its
headquarters, who, in turn, will transfer the notice to be serviced to the Central Authority
of the requested country. In order to apply the Hague Convention the known address of
the recipient is a sine qua non. It is not required that the notice of service be written
directly in the official language of the requested State. However, the Central Authority of
this State may request that it be written in its language (Article 5). As in the case of the EU
Regulation, service is regulated by a similar system of certificates (Article 6) and is not
subject to fees or costs, although expenses can be incurred. Contrary to the provisions of
the European system, the Central Authority of the requested State may refuse
cooperation if it considers that such may damage its sovereignty or security (Article 13).
P 81
In order to apply the Hague Convention, the US Supreme Court has expressly accepted
service by email. (16)

[D] Act on International Cooperation in Civil Matters

6.13. When neither the EU Regulation nor the Hague Convention can be applied – because
neither has been ratified in the State where the evidence is requested, whether due to
the consent of the affected party – then court assistance must be processed through the
channel provided for in Articles 20–28 of the International Legal Cooperation Act in Civil
Matters (ILCA). Pursuant to Article 9 ILCA, court assistance may be requested and
processed through any of the following channels: consular or diplomatic; central
authorities; directly between the jurisdictional bodies; and, through notarial channels.
The only requirement is that any of the chosen avenues is set forth as a channel of
cooperation in the domestic legal systems of the States involved. Regarding the service
itself, the ILCA distinguishes between service outside the jurisdiction and within the
jurisdiction of the Spanish courts (Articles 21 and 22, respectively). Service outside the
jurisdiction may be instigated either through the Spanish Central Authority or directly to
the competent authority of the requested State (Article 21). To serve notification in Spain,
the aforementioned channels may be used (Article 22). As regards service, after six
months from the date the document was dispatched, at the request of the interested
party the competent authority will provide notice of this even if it has not been able to
certify that service has been performed (Article 24). The documents sought to be served
outside the jurisdiction must be accompanied by a translation into the official language
of the State of destination or into a language that the recipient understands (Article 25).

[E] A Controversial Point: Service of the Award

6.14. More significant issues arise in practice concerning service of the award itself. In
this specific area, the provincial courts, following the criteria of their counterparts of first
instance, usually requiring a degree of formality specific to court procedures, without
giving sufficient consideration to two basic facts: (1) that the ‘AA is not the equivalent of
the CPA’ and that, consequently, the provisions of the former should not be interpreted
with the procedural criteria proper to court based proceedings; and furthermore; (2)
Article 37.7 AA, when regulating the manner in which the arbitrators must proceed to the
notify the parties of the award, gives pride of place to the freedom of the parties to
regulate this issue.
For this reason, there are grounds for questioning court decisions that insist on lumping
notification of the arbitral award under the same procedural parameters as provided for
in the CPA; thus, it is misleading to equate the tenor of Article 37.7 AA with the provisions
of Article 161 CPA. The entire AA adopts an anti-formalistic approach (it does not attempt
P 82 to provide an ad hoc procedure to effect service of the award); whereas, alternatively,
the CPA is drafted along formal lines. The spirit of the latter is thus quite at variance with
the former of which it can be affirmed that: ‘The very nature of the arbitration award, as a
resolution that resolves outstanding issues that have arisen between different parties
and whose effectiveness is comparable to that of a judgment, implies an obligation to
provide the same guarantees for notification of its decisions as are legally required for
court judgments.’ (17)
6.15. More in keeping with the characteristics of arbitration – although not entirely – is the
interpretation that the above-mentioned Agreement on unified criteria assumes on this
point (supra). Pursuant to which: ‘effective service of the award must provide proof of
receipt at the address of the recipient of the award for whose benefit it is intended,
either through the intervention of a notary who certifies the content of the forwarded
document, or by employing buro-fax with acknowledgment of receipt or other means that
provide a faithful record of the documents’ content and reception’.
6.16. Despite all the above – which basically only affects the presumptions behind
domestic consumer arbitration – there is an interesting line of less familiar cases that,
address the issue from the perspective of enforcing the foreign arbitral award – a typical
international perspective –, that clearly perceive the scope of the parties’ freedom of

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 consent. Viewed from this perspective whether correct service of the notification
complied with the Spanish procedural law is largely irrelevant: ‘In the face of this, the
first thing that can be said is that the notification of the arbitration award, in the same
way as the other notifications in the arbitration process, has to be performed in the
manner agreed upon by the parties in the “Terms of Reference”, as the forms of service
provided for in the Spanish and French procedural laws are in this respect irrelevant.’ (18)

§6.02 COMPUTATION OF TERMS

6.17. Computation of the time periods as set forth in Article 5 (b) AA are based on the day
on which communication has been made:
b) The time limits defined hereunder will be counted from the day after
receipt of the notification or communication. If the last day of the period is a
holiday at the place of receipt, the time limit will be extended to the next
business day. When a document is to be submitted within a given time, that
obligation will be regarded as met if it is sent within that time, regardless of
when it is received. For these purposes, days will be understood to mean
calendar days.
The most important applied assumption behind this provision is that relating to the
P 83 deadline for filing an annulment action. In fact, this is the assumption that has given
rise to the majority of case law. (19) In any case, the remedies anticipated in this
subsection are very similar to those contained in the different Regulations of the most
important Arbitration Courts (i.e., Article 3.4 ICC Arbitration Rules).
P 83

References
1) Judgment HC Madrid, 19.2.2015, ECLI:ES:TSJM:2015:14008.
2) Order PC Madrid, section 11, 14.4.2005.
3) Order SC, 5.7.2005; Question of unconstitutionality, no. 2771/2005, RTC 2005\301.
4) Agreement on unified criteria, PC Madrid, 28.9.2006, JUR 2007\87246.
5) Judgment CJEU, 2.3.2017, C-354/15, Marcus.
6) Another opinion, Picó i Junoy, El nuevo sistema de notificaciones y plazos en el
arbitraje, Anuario de Justicia Alternativa, 41-42 (2004). About the way of formal
notification, when the plaintiff has only a vacation residence in Spain, the
notification must be delivered in the country of residence, see Judgment CC, 50/2017,
8.5.2017, ECLI:ES:TC:2017:50.
7) Order CC, 5.7.2005, RTC 2005\301.
8) Judgment HC Madrid, 9.12.2015, ECLI:ES:TSJM:2015:14008.
9) Mantilla Serrano, Ley de Arbitraje, Una perspectiva internacional, 65-67 (2005).
10) Judgment PC Madrid, 16.5.2006, JUR 2006\192440. With more references, Gascón
Inchausti, La notificación del laudo arbitral como requisito para su ejecución forzosa,
Arbitraje 104-105 (2008).
11) DOUE L 324, 10.12.2007.
12) CJEU, 17.11.1998, C-391/95, Van Uden. About this Judgment, see infra Chapters 9 and 12.
13) CJEU, 11.11.2015, C-223/14, Tecom. About this Judgment, see Forner Delaygua, Concepto
de ‘documento extrajudicial’ en el Reglamento (CE) nº 1393/2007, de 13 de noviembre de
2007, de notificaciones, La Ley Unión Europea (29.2.2016).
14) See CJUE, 11.11.2015, C-223/14, Tecom.
15) CJEU, 8.11.2005, C-443/03, Leffler.
16) Water Splash Inc v. Menon, 22.5.2017, SC (USA), No. 16-254.
17) Order PC Madrid, 21.12.2006, JUR 2007\89307. In the same vein, Order PC Madrid,
9.4.2007, JUR 2007\212748.
18) Order First Instance Court no. 3 of Rubí, 11.6.2007, SAR, 171-188 (5/2009), Note, Gómez
Jene.
19) See Chapter 12.

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