The High Court of Justice of Madrid, in a judgment dissenting as to reasoning but not outcome, has held that this would undermine domestic public policy as it would no longer be a matter of official record.
In exequatur proceedings for the recognition of an arbitral award issued in institutional arbitration administered by the China International Economic and Trade Arbitration Commission (CIETAC), the defendant had argued that he had not been properly notified of the commencement of the arbitration or of the award, given that in the arbitral casefile supplied by the CIETAC, it was merely recorded that the said notice had been served by sending an e-mail through a law firm, but no evidence was supplied to show that it had been received.
Even though the defendant, following the start of the hearing, acknowledged that he had properly received the e-mail informing him of the commencement of the arbitration – which resulted in his defence being dismissed – Judgment 3/2023 of the High Court of Justice of Madrid of 8 February held, in the form of a dissenting judgment as to legal reasoning rather than the outcome by the Learned Judge Santos Vijande, that the said system of serving notice ‘cannot be recognized as proof’ because ‘it is merely an assertion by one of the parties’. He makes the unfavourable observation that there is no proof that the e-mail was received, concluding that ‘if such a system for the service of notice were to be deemed valid […], then notwithstanding the desire to allow maximum flexibility in the system for communicating with the parties in institutional arbitration proceedings, we would be in contravention of domestic public policy, because we would cease to make the validity of the service of notice subject to a quality that it must unavoidably possess, viz. it must be a matter of official record’, while at the same time putting the party in receipt of notice in a situation of probatio diabolica by having to accomplish the impossible task of proving that it has not been notified, contrary to the constitutional requirement of providing proof of the official record of the notice served.
