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http://hdl.handle.net/10609/102626
Title: La anulación de laudos por arbitrariedad: la desvirtuación del arbitraje comercial
Author: Castillo Comabella, Claudia
Tutor: Morales Barceló, Judith
Keywords: arbitration
public order
annulment of arbitral awards
motivation of arbitral awards at the annulment stage
Issue Date: 15-Jul-2019
Publisher: Universitat Oberta de Catalunya (UOC)
Abstract: This work proposes a critique of the revisionist doctrine initiated by the Judgment of January 28, 2015 of the Superior Court of Justice of Madrid, in which the nullity of the arbitration award was declared for violating the economic public order and for insufficient motivation (arbitrariness ). It is argued that the annulment of an award cannot be based on an alleged lack of motivation, since that would only lead to the distortion of the purpose of the arbitration itself, which is the exclusion of the ordinary jurisdiction emanating from the will of the parties . In the first place, because the motivation of an award has no place in the notion of public order. Second, because the arbitration fee is not applicable to arbitration awards, while the arbitration award is not comparable to the judicial decision, mainly because arbitration is based on article 10 of the Spanish Constitution of 1978 (autonomy of the will) and not in its article 24 (effective judicial protection). In this context, the need to apply a standard of motivation of arbitration awards, which takes into account their nature, as well as their anchorage in the Constitution is discussed. To contribute to the debate on this issue, this paper proposes an approximation of how that standard should be, drawing on the criteria of the cancellation committees under the ICSID Convention and recovering the previous rule of the Spanish courts that, although incomplete, was going in line with the decision line of these committees.
Language: Spanish
URI: http://hdl.handle.net/10609/102626
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