Edemiro v. Erasmo

At a glance

Parties

Edemiro (insolvency administrator) v. Erasmo

Case no.

ATSJ CAT 570/2019; Auto No. 149/2019; Arbitrajes No. 12/2019

Court

Tribunal Superior de Justicia de Cataluña, Civil and Criminal Chamber, Section 1 (Barcelona)

Underlying award(s)

Decision of 19 March 2019 by the Arbitrazh ("Arbitration") Court of the Rostov-on-Don Region, Russian Federation, in case A53-34450/2015 (insolvency proceedings)

Forum and rules

Exequatur application under the New York Convention 1958 and Spanish Arbitration Act 60/2003, art. 46

Tribunal

José Francisco Valls Gombau (President), María Eugènia Alegret Burgués (reporting judge), Jordi Seguí Puntas

Sector

Insolvency; real property

Outcome

Application declared inadmissible and exequatur refused (19 September 2019).

The dispute

Vostochny Express Bank brought case A53-34450/2015 before the Arbitrazh Court of the Rostov-on-Don Region in the Russian Federation. It asked the court to declare Mr Erasmo insolvent and to approve a plan restructuring his debts. The Russian court declared him bankrupt and opened liquidation proceedings. It also issued a protective order forbidding him to sell a property he owned in Lloret de Mar. Edemiro, the insolvency administrator appointed by that court, applied to the High Court of Justice of Catalonia for recognition (exequatur) of that decision, described as an arbitral award dated 19 March 2019, so that the order could be entered in the Spanish property register. He relied on Article 12.1 of Law 15/2015 on Voluntary Jurisdiction, Article 54 of Law 29/2015 on International Legal Cooperation, Article IV of the New York Convention and Article 46 of the Arbitration Act 60/2003.

Key holdings

1. Spanish courts have jurisdiction, and the Chamber is in principle competent under Article 8.6 of the Arbitration Act to hear exequatur applications for foreign arbitral awards, the character the application gave to the decision. Legal Ground 1
2. Law 15/2015 on Voluntary Jurisdiction does not apply, because the applicant sought enforcement of a decision made in bankruptcy proceedings. The 1990 Spain–USSR Convention on legal assistance in civil matters does not help either: its Article 17 excludes both bankruptcy matters and arbitral awards from its chapter on recognition. Under Article 46.2 of the Arbitration Act, the recognition of foreign awards is therefore governed by the New York Convention. Legal Ground 2
3. The application fails under Article IV of the New York Convention. The applicant did not submit the original or a certified copy of a written arbitration agreement within the meaning of Article II between the bank that started the proceedings and the respondent. Legal Ground 2(a)
4. Under Article V(2), the court must check on its own motion whether the subject matter can be settled by arbitration. Insolvency proceedings cannot be arbitrated in Spain: they are not matters the parties may freely dispose of under Article 2 of the Arbitration Act and Articles 1–12 of the Insolvency Act 22/2003. Legal Ground 2(b)
5. International cooperation in insolvency matters is governed, as a special rule, by Articles 220 et seq. of the Insolvency Act. The application was declared inadmissible and exequatur was refused. A motion for reconsideration (recurso de reposición) could be filed within five days. Legal Ground 2; operative part

Procedural history

1. 19 March 2019The Arbitrazh Court of the Rostov-on-Don Region issued the decision whose recognition was later sought.
2. 30 July 2019The exequatur application was registered and a reporting judge was appointed. The court's Letrado de la Administración de Justicia proposed that the application be declared inadmissible.
3. 19 September 2019The High Court of Justice of Catalonia declared the application inadmissible and refused exequatur (Auto No. 149/2019).

Tribunal, counsel and experts

Decided by

• José Francisco Valls Gombau President, Tribunal Superior de Justicia de Cataluña
• María Eugenia Alegret Burgués Judge, Tribunal Superior de Justicia de Cataluña (reporting judge (ponente))
• Jordi Seguí Puntas Judge, Tribunal Superior de Justicia de Cataluña

For the claimant

Raquel Isabel Fernández Suárez · Susana Manzanares Corominas

Run a conflict check on these names →

Keywords

• New York Convention
• exequatur
• recognition of foreign arbitral awards
• Article IV
• Article II
• Article V(2)
• arbitrability
• insolvency
• bankruptcy
• Russian Federation
• Rostov-on-Don
• Lloret de Mar
• Spanish Arbitration Act 60/2003
• Law 29/2015 international legal cooperation
• Insolvency Act 22/2003
• written arbitration agreement
• Vostochny Express Bank

Summary generated with AI from the published documents — refer to the award for the authoritative text.