IS IT NECESSARY TO ATTACH AN “ORDER DECLARING FINALITY”?
It happens that, in the limited—though existing—practice of some civil and commercial courts, in order to issue an enforcement order for an arbitral award, they require the filing of “a resolution declaring the award final,” whether issued by the arbitral tribunal itself or through certifications issued by the Court of Second Instance with civil jurisdiction, when an appeal has been filed.
In this regard, I will refer to the first scenario.
The arbitral tribunal concludes its mandate and ceases to perform its functions once the award has become final (Article 73, subsection 3 of the LMCA).
Under Article 65 of the LMCA, a final or enforceable award is understood to be one that “has become enforceable” under the same forms and terms established in the Code of Civil Procedure (currently the Civil and Commercial Procedural Code).
Upon examining Article 229 of the Civil and Commercial Procedural Code, we observe that the law provides that a judgment becomes final when no further remedies are available, when the parties consent to the judgment, or when the period for challenging it has elapsed. Consequently, the procedural closing order known as an “order declaring finality” is not required by law and, although in some cases it may serve as a type of evidence of the absence of challenge, in our view it should not fall within the authority of the enforcement judge to require such finality order, especially because, in judicial practice, many judges no longer issue it at all, since the mere passage of time, upon the occurrence of any of the legal grounds, is sufficient for a judgment to acquire finality, and some judges even state so in a final paragraph before signing the judgment.
In that same line of reasoning, the arbitral tribunal has no obligation to issue any kind of “resolution declaring finality,” much less should the enforcement judge require it. If, through bad faith or for any other reason, the enforcing party falsely represents to the court that the award is enforceable, it will be the party against whom enforcement is sought that is in the best position to prove the lack of “finality” of the arbitral award; without prejudice to that party bringing other civil, administrative, or even criminal actions based on the false statements made by the enforcing party or its attorney-in-fact.
Of particular relevance on this point is the judgment rendered by the First Civil Chamber of the First Judicial District of the Central Region of San Salvador, issued at 2:48 p.m. on October 30, 2015, in the appeal incident identified under reference 143-61CM1-2015.
