TP Ferro Concesionaria S.A. v. Reino de España

At a glance

Parties

TP Ferro Concesionaria S.A. v. Kingdom of Spain (through the Ministry of Public Works, Ministerio de Fomento); the Public Prosecutor (Ministerio Fiscal) also took part

Case no.

ATSJ M 452/2019 (ECLI:ES:TSJM:2019:452A); Recognition of Foreign Awards proceeding No. 41/2018; Auto No. 4/2018

Court

Tribunal Superior de Justicia de Madrid, Civil and Criminal Chamber, Section 1

Forum and rules

Exequatur under the 1958 New York Convention (Articles IV and V) and Article 46.2 of the Spanish Arbitration Act

Treaty

None. The claim arose under a concession contract with an arbitration protocol

Underlying award(s)

Award rendered in Geneva on 9 April 2017 by José Miguel Júdice, José Manuel Otero Novas, Daniel Labetouille and Antonio Hierro Echevarría

Tribunal

Celso Rodríguez Padrón (Presiding, reporting judge), Jesús María Santos Vijande, Francisco José Goyena Salgado

Sector

Railway infrastructure (high-speed rail concession)

Outcome

Application granted in full on 30 April 2019. The award was recognised in Spain, Spain was ordered to pay costs, and no appeal lies.

Amount

Award recognised: EUR 1,367,617.35, plus interest at 2% a year from 31 December 2013 until payment in full (interest of EUR 88,895.12 as of 1 April 2017). Costs of the recognition proceeding were imposed on Spain.

The dispute

TP Ferro Concesionaria S.A. held the contract for the concession, construction, maintenance and operation of the international section of a new high-speed railway line between Figueres and Perpignan. It claimed damages from the Spanish Ministry of Public Works. Its case was that the grantors had breached the conditions needed for normal performance of the contract. In an award rendered in Geneva on 9 April 2017, the arbitral tribunal found that the delay until 30 April 2013 in installing the ERTMS signalling system on the Barcelona–Figueres line was attributable to Spain. That delay had postponed the definitive entry into service of the line, because the trains that RENFE and SNCF wished to use could not be tested and validated. The grantors were held jointly and severally liable for the concessionaire's lost 2013 revenue. TP Ferro then applied to the High Court of Justice of Madrid for recognition of the award. Spain did not oppose on the merits. It argued instead that the proceeding should end because the claim had already been satisfied out of court: the Ministry had itself recognised the award.

Key holdings

1. An administrative act of the Ministry recognising the award did not end the case as a claim satisfied out of court (Article 22 of the Civil Procedure Act). The claimant sought not only a declaration that the award is valid, which was undisputed, but also judicial recognition of its enforceability. Under Articles 50 and 54 of Law 29/2015, only an exequatur makes a foreign decision enforceable in Spain. Legal Ground Three
2. The exequatur proceeding is declaratory and confirmatory only. The court reviews the external elements of the foreign award, and recognition makes the award an instrument on which enforcement can be based. Legal Ground Three
3. The court found that the application met the formal requirements of Article IV of the New York Convention. The award and the arbitration agreement existed, and no ground for refusal under Article V had been proved or was present. The Ministry's express acceptance of the award in its Resolution of 13 September 2018 weighed decisively in favour of recognition. Legal Ground Three
4. The award is recognised. It orders the Kingdom of Spain, jointly and severally with the grantors, to pay EUR 1,367,617.35 plus interest at 2% a year from 31 December 2013 until payment in full, with interest of EUR 88,895.12 accrued as of 1 April 2017. Operative part
5. Costs follow the event under Article 394 of the Civil Procedure Act and are imposed on Spain. No appeal lies against the decision. Legal Ground Four; operative part

Procedural history

1. 9 April 2017Arbitral award rendered in Geneva. Spain is found liable for the ERTMS delay and ordered to pay EUR 1,367,617.35 plus interest. Each party bears its own costs and all other claims are dismissed.
2. 8 June 2018TP Ferro files its application for recognition with the High Court of Justice of Madrid.
3. 25 June 2018The application is admitted by decree and served on Spain and the Public Prosecutor.
4. 13–14 September 2018The Secretary General of Infrastructure of the Ministry of Public Works recognises the award (13 September). On 14 September the State Attorney asks the court to treat the claim as satisfied out of court.
5. 16 October 2018Hearing on the request to end the proceeding.
6. 19 October 2018Order rejecting the request to end the proceeding as satisfied out of court, with costs against Spain.
7. 30 April 2019Order recognising the award in full, with costs against Spain.

Tribunal, counsel and experts

Decided by

• Celso Rodríguez Padrón Judge, Tribunal Superior de Justicia de Madrid (Presiding judge and reporting judge (ponente))
• Jesús María Santos Vijande Judge, Tribunal Superior de Justicia de Madrid
• Francisco José Goyena Salgado Judge, Tribunal Superior de Justicia de Madrid

For the claimant

Ramón Rodríguez Nogueira

For the respondent

Abogacía del Estado

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Keywords

• New York Convention
• recognition of foreign arbitral award
• exequatur
• Article IV
• Article V
• Spain
• Geneva
• high-speed rail
• Figueres–Perpignan
• ERTMS
• concession contract
• out-of-court satisfaction
• Article 22 LEC
• Law 29/2015 on international legal cooperation
• enforceability
• costs

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