Section 10 of the Provincial Court of Madrid has overturned the inadmissibility and dismissal of enforcement proceedings notice of which was ignored by the debtor.
In judicial proceedings for the enforcement of an arbitral award, the Court of First Instance had previously dismissed the enforcement action, ruling it inadmissible on the grounds that the requirements of article 550.1.1 of the Civil Procedure Law (L.E.C.) were not met (‘[w]here the right derives from an award, then the arbitration agreement and all documents in proof of the parties having been served notice of the said award shall also be attached.’).
It found that ‘[i]t has not been possible to serve notice of the award or the correction thereof, despite the fact that the defendant continues to reside at the leased property and that notices have been sent to the said property, all of which have been ignored, and as such the decision has become final pursuant to clause eight of the lease agreement and art. 5. a) of the Arbitration Law’. In this specific case, the following communication attempts have been made, all of which have been ignored:
- Communication sent by the Court of Arbitration to the defendant’s contractually declared e-mail address, together with a certificate issued by Logalty;
- Postal communications sent by the Court of Arbitration to the postal address stated in the lease agreement with certificates issued by SEUR;
- Dispatch of official certified communications (burofaxes) by the Court of Arbitration to the property;
- Dispatch of a burofax by the counterparty to the property.
The Court of First Instance found that ‘the documents required by art. 550-1-1 of the Civil Procedure Law (LEC) are not attached’ and that ‘attempted service is not equivalent to actual service’.
The party seeking enforcement filed an appeal on the basis of article 5.a) of the Arbitration Law (‘All notices or communications shall be deemed to be received on the day on which they are delivered in person to the addressee or on the day they are delivered to his/her domicile, habitual residence, establishment, or address. Furthermore, notices or communications served by telex, fax, or any other similar forms of electronic or telematic telecommunications shall also be valid provided that they allow for the sending and receipt of texts and documents and generate a record of their dispatch and receipt and have been designated by the interested party. In the event that, following reasonable enquiries, no such location can be identified, notices or communications shall be deemed to be received on the day on which delivery is made or attempted by way of registered mail or any other method that generates a record of delivery or attempted delivery at the addressee’s last known domicile, habitual residence, address, or establishment’), arguing that the established legal requirements had been met.
Judgment 214/2023 of 17 May issued by Section 10 of the Provincial Court of Madrid allows the appeal and overturns the decision of the Court of First Instance, ordering that the action seeking the enforcement of the award be allowed to proceed. The Court held that ‘[a] Burofax not delivered for reasons attributable to the addressee, either because delivery is declined or because it is never collected from the corresponding office, constitutes service for all relevant purposes. There is consolidated caselaw on this point, and a Burofax that is not delivered because it is declined or never collected does not constitute proof of a lack of knowledge by the addressee, but rather quite the contrary, it is proof of the addressee’s unwillingness to receive the corresponding documents’.
