Xavier Moliner, Juan Martinez, Anna Gerbolés and Laia Rull were in charge of chapter 14 dedicated to drug and medical device litigation.

La entrada Faus Moliner participates en “International Comparative Legal Guide – Drug & Medical Device Litigation 2025”   aparece primero en Faus Moliner.

Xavier Moliner and Juan Martinez were in charge of chapter 15 dedicated to drug and medical device litigation.

La entrada Faus Moliner participates en “International Comparative Legal Guide – Drug & Medical Device Litigation 2024”  aparece primero en Faus Moliner.

Xavier Moliner and Juan Martinez were in charge of chapter 15 dedicated to drug and medical device litigation.

La entrada Faus Moliner participates in the «International Comparative Legal Guide to Drug & Medical Device Litigation 2023» aparece primero en Faus Moliner.

Xavier Moliner and Juan Martinez were in charge of chapter 16 dedicated to drug and medical device litigation.

La entrada Faus & Moliner participates in the «International Comparative Legal Guide to Drug & Medical Device Litigation 2022» aparece primero en Faus Moliner.

Xavier Moliner and Juan Martinez were in charge of chapter 16 dedicated to drug and medical device litigation.

La entrada Faus & Moliner participates in the «International Comparative Legal Guide to Drug & Medical Device Litigation 2021» aparece primero en Faus Moliner.

The efficacy of arbitration as an alternative dispute resolution mechanism is based, inter alia, on the fact that arbitral awards are binding on the parties. In this regard, one can compare an arbitral award to a court judgement. From the moment in which such award is final, the parties must comply with it. In case of non-compliance, the affected party can request the enforcement of the arbitral award before court.

An arbitral award ceases to be binding only when it is annulled by a competent court. The chances of this happening are very limited. In order to decide about the annulment of an arbitral award, an action must be filed before the court within 2 months of the notification of the award. Furthermore, the annulment is only possible under certain grounds set out in the law. One of these grounds is that a party is not duly notified during the arbitration.

The filing of the annulment action does not suspend the enforcement procedure. To obtain such suspension, the concerned party must request the suspension as a preliminary measure within the annulment procedure.

Court’s decision

In this case, the winning party of an arbitration requested the competent Court to enforce the arbitral award which, among other issues, obliged the losing party to make certain payments. The losing party opposed the enforcement arguing that the arbitral award was null because it had not been notified of neither the demand for arbitration nor the arbitral award.

The Court dismissed the opposition stating that whether the arbitral award is declared null or not, is not is not a matter to be decided in the enforcement procedure.

The position of this Court has been confirmed by the Court of Appeals of Barcelona. The Court of Appeals has expressed that the annulment of the award should have been sought in a separate annulment action that could have been filed when the request for enforcement was notified to the affected party.

Final thought

Arbitral awards are as mandatory as judicial decisions. It is well-known that if the party affected by a court judgment fails challenge it when possible, then such party will not be able do so in the future.

When it comes to arbitration, the same principle must apply. If the party affected by an arbitral award does not file an annulment action in due course, then such party cannot claim that the award should be annulled in the enforcement proceeding.

In our opinion, judicial decisions such as this one enhance trust in arbitration.

La entrada An arbitral award cannot be annulled in the enforcement proceeding of such award aparece primero en Faus Moliner.

This case started when the company Integral filed a lawsuit against Laboratorios Liconsa before the Commercial Court number 3 of Barcelona.

In such lawsuit, two legal actions were jointly flied: one action claiming payment of unpaid invoices issued in consideration for certain projects made by Integral; and the other action was based on unfair competition practices supposedly committed by Liconsa by hiring the workers of Integral who were performing the projects from which the unpaid invoices derived.

In order to support the filing of both legal actions jointly, Integral argued that the projects, the non-payment of the invoices arising from such projects and the subsequent hiring of those employees of Integral who were performing the projects was all part of the unfair plan conceived by Liconsa. According to the plaintiff, such plan had two purposes: firstly, avoiding payment of the work done and, secondly, acquiring the know-how developed by Integral in connection with the projects. Integral argued that Liconsa would be taking advantage not only of the work done but also of the knowledge and training of the employees after their participation in the projects.

At first, the Commercial Court considered that filing these two legal actions in a joint manner was unproperly done by the plaintiff and such Commercial Court declared itself without jurisdiction over the unpaid invoices claim.

According to the Commercial Court, pursuant to the provisions contained in the Spanish Code of Civil Procedure, the Courts having jurisdiction over debt recovery claims were only the Spanish Civil Courts.

Position of the Court of Appeals

The judgement of the Commercial Court declaring itself without jurisdiction over the unpaid invoices claim, was appealed by Integral and the case came to the knowledge of the Court of Appeals. The Court of Appeals considered that the joint filing of both legal actions was correct and that, in this case, the Commercial Court had jurisdiction over the debt recovery claim. Consequently, the Court of Appeals declared that all court proceedings were null and ordered the restart of such proceedings.

According to the Court of Appeals, both legal actions were interdependent and derived from claims based on the same facts, because the implementation of the projects, subsequently unpaid, was one of the main reasons that led Liconsa to hire the employees of Integral. Considering the foregoing, the Court of Appeals considered that, in this case, it was necessary to make reasonable interpretation of the Code of Civil Procedure and, thus, allow both actions to be jointly filed. The Court of Appeals considered that requiring two different proceedings to prosecute the same facts would be unreasonable in this case and would constitute a breach of the plaintiff‘s right to effective legal protection.

La entrada Spanish Commercial Courts have jurisdiction over debt recovery claims when such claims are related to unfair competition lawsuits aparece primero en Faus Moliner.

The judgments of a Member State shall be directly enforceable in the EU

The biggest novelty of Regulation 1215/2012 is the abolishment of the exequatur. Currently, in order to execute a judgment given in another Member State the declaration of enforceability on behalf of a national court is required prior to its enforcement. In the new regulation such requirement disappears, therefore any judgment given in a Member State of the EU must be automatically recognized without the need of any proceedings and must be directly enforced, as if it were issued in the State where the enforcement is sought.

However, Regulation 1215/2012 maintains the mechanisms for challenging the recognition and enforcement of the judgments in case the recognition is contrary to the public order of the State where such recognition is sought, the judgment has been issued by default without  the defendant having been given enough time to defend itself, if the judgment is irreconcilable with another one issued between the same parties or if it comes into conflict with the provisions of the Regulation in matters of insurance, consumers, employees or exclusive jurisdiction.

Reinforcement of the freedom of choice-of-court

Regulation 44/2001 already established that the parties are free to agree which must be the competent judicial authority to settle any dispute that might arise from their contractual relation. However, under such Regulation it is necessary that at least one of the two parties is domiciled in an EU State. With the new Regulation such requirement disappears, and therefore a court of the EU shall have to declare itself to be competent when the parties have agreed to be subjected to its jurisdiction although both parties are domiciled outside the EU.

Likewise, Regulation 1215/2012 reinforces the effectiveness of choice-of-court agreements modifying the lis pendens rules. Under the new Regulation, in the case that claims involving the same subject-matter and cause of action are filed between the same parties before courts of two different Member States, the court designated by the parties shall have priority over any other, regardless of before which court the first claim was brought. In this way, a court that is not the one designated by the parties shall be required to stay its proceedings until the designated court rules on its jurisdiction.

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