Abstract
This article analyses a groundbreaking judgment of a Spanish court which, for the first time, upheld a contractual performance action based on an Italian arbitrato irrituale (a form of contractual arbitration under Italian law) award. As such awards are not rendered within a formal arbitration procedure and lack enforceability under the 1958 New York Convention, their execution in Spain has traditionally been impossible. By characterising the arbitrato irrituale as a binding contractual determination, the Spanish court recognised its enforceability through a contractual performance claim, thus setting a precedent of great significance for cross-border enforcement of non-institutional awards in Europe.
I. Introduction: a complex cross-border dispute
The decision of the Court of First Instance No. 1 of Torrevieja (Judgment No. 256/2025, 6 June 2025) represents a true milestone in Spanish private international law and arbitration practice. For the first time, a Spanish court has granted full relief in favour of a claimant seeking to enforce an Italian arbitrato irrituale award by means of an ordinary contractual action, thereby overcoming the formal limitations of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
The case arose from a series of international sales contracts concluded in 2022 between an Italian agri-food company, engaged in the collection and processing of agricultural raw materials, and a Spanish trading company specialising in the wholesale of agricultural products. The contracts provided that any disputes relating to their execution or interpretation would be mandatorily submitted to the decision of arbitri amichevoli compositori (friendly arbitrators) appointed under the Arbitration Rules of the Milan Grain Exchange Association (Associazione Granaria di Milano). The clause expressly authorised the arbitrators to decide ex bono et aequo—according to fairness and equity—without legal formalities.
Following serious breaches by the Spanish company, which failed to comply with its payment and collection obligations, the Italian company initiated arbitration before the Milan Grain Exchange Association pursuant to the arbitration clause. On 18 June 2023, the Association rendered an award (No. 1/2023) ordering the Spanish company to pay the sum of €2,941,891 as principal, together with contractual interest and arbitral costs.
When the Spanish company failed to comply voluntarily, the Italian creditor faced the challenge of enforcing the award. However, as the debtor had no domicile or attachable assets in Italy, and the award had been rendered in an arbitrato irrituale, enforcement through ordinary Italian mechanisms or recognition in Spain under the New York Convention was unavailable. The arbitrato irrituale procedure—being informal and based on the parties’ private autonomy—does not produce res judicata or executive force, as it falls outside the scope of “arbitration” in the sense of the Convention.
II. The Non-Institutional Award and Its Legal Character. Our Strategy: Enforcing the Award as a Contractual Obligation
This impasse required a creative legal approach. Upon analysing the nature and effects of the arbitrato irrituale under Italian law, the claimant’s legal team identified an alternative route grounded in the contractual nature of such awards. Under Article 808-ter of the Italian Code of Civil Procedure, the parties may, by written agreement, authorise arbitrators to resolve a dispute “by way of contractual determination”, as opposed to a jurisdictional decision. Italian case law—particularly the Supreme Court’s decision No. 7574 of 1 April 2011—confirms that such an award, even if signed by the majority of arbitrators, is binding on the parties “as if it were a contract directly concluded between them, as an expression of their own will.” In other words, the arbitrato irrituale constitutes a contractual determination rather than a judicial one.
From this premise, we reasoned that the arbitrato irrituale could be treated in Spain as a binding contract, whose non-performance entitled the creditor to bring an action for specific performance under Article 1124 of the Spanish Civil Code. Since the defendant was domiciled in Spain, jurisdiction was established pursuant to Article 4 of Regulation (EU) 1215/2012 (Brussels I bis), while the applicable law was determined by Article 4(2) of Regulation (EC) 593/2008 (Rome I), pointing to Spanish law as the governing law of the performance action.
Accordingly, we filed a contractual claim before the Court of First Instance No. 1 of Torrevieja, seeking judicial enforcement of the arbitrato irrituale award’s operative provisions. The claim invoked Articles 1089 and 1091 of the Spanish Civil Code, which provide that obligations arising from contracts have the force of law between the parties and must be fulfilled in good faith.
In its judgment No. 256/2025 of 6 June 2025, the Torrevieja court upheld the claim in full. It ordered the defendant to pay €2,953,891 as principal, plus interest and costs, thereby giving judicial effect to the Italian award’s contractual determinations. The court held that, under Italian law, the arbitrato irrituale award had binding contractual force, and that such an obligation could validly be enforced under Spanish law through an ordinary performance action. The reasoning reflects a nuanced understanding of both systems: while the award lacked enforceability in the procedural sense, it gave rise to a contractual obligation enforceable by the ordinary civil courts.
The court also accepted that the action extended to interest and ancillary obligations, since these too arose from the contractual relationship embodied in the arbitrato irrituale award. The judgment expressly recognised that the absence of res judicata or executive force did not preclude enforcement of the award’s substantive determinations, insofar as these reflected a valid and binding agreement between the parties. In doing so, the court bridged a long-standing gap between the contractual and adjudicative dimensions of arbitration.
III. A Pioneering Judgment in Spain
This decision constitutes a genuine breakthrough in Spanish jurisprudence. Until now, the enforcement of arbitrato irrituale awards—particularly those rendered abroad—had been regarded as legally impossible, given their exclusion from the New York Convention and their lack of judicial enforceability. The Torrevieja judgment demonstrates that Spanish law, when read in harmony with European private international law instruments, offers a viable mechanism to give effect to such awards. It affirms that the contractual nature of an arbitrato irrituale award allows it to be treated as a binding obligation under national law, irrespective of its non-jurisdictional origin.
IV. Implications for International Litigation
The implications of this ruling extend beyond the specific case. First, it provides an alternative enforcement pathway for creditors holding arbitrato irrituale awards in cases where the debtor is domiciled in another EU Member State. The combination of the Brussels I bis and Rome I Regulations ensures that jurisdiction and applicable law canbe established predictably, enabling creditors to rely on contractual remedies even when arbitral enforcement is excluded.
Secondly, the judgment strengthens the position of the arbitrato irrituale within the European legal landscape. Although this form of arbitration is unique to Italy and recognised mainly through trade usages—particularly in the agricultural and commodity sectors—it has long been criticised for its hybrid nature and uncertain enforceability abroad. By treating such awards as binding contracts capable of judicial enforcement, the Spanish court has effectively acknowledged their legitimacy as private dispute resolution instruments under EU principles of mutual recognition and party autonomy.
Thirdly, the ruling may encourage a broader reconsideration of the interface between contractual autonomy and arbitral enforcement within EU law. It illustrates that the effectiveness of transnational commercial arbitration does not depend exclusively on the procedural mechanisms of the New York Convention. Instead, it shows that national courts may uphold alternative dispute resolution outcomes through traditional contractual remedies, provided these are consistent with the parties’ consent and with the fundamental principles of the forum.
From a practical perspective, this approach offers clear advantages. For creditors, it opens a reliable enforcement channel in jurisdictions where the debtor has assets but where the arbitrato irrituale award would otherwise be unenforceable. For debtors, it reinforces the binding nature of their contractual commitments, discouraging reliance on procedural technicalities to avoid compliance. And for courts, it provides a coherent doctrinal framework for addressing foreign contractual form awards without distorting the concept of arbitration or undermining the autonomy of national enforcement regimes.
Doctrinally, the decision aligns with the Italian Supreme Court’s long-standing view that the arbitrato irrituale reflects an exercise of the parties’ private autonomy, akin to a mandate conferred upon the arbitrators to define their reciprocal obligations. Once rendered, the award embodies the parties’ mutual will, producing binding effects comparable to a contractual agreement. The Spanish court’s reasoning mirrors this logic: by recognising the contractual binding force of the award, it honours the parties’ original intent while ensuring that the creditor’s rights are effectively protected.
The Torrevieja judgment may thus serve as a persuasive precedent for courts in other jurisdictions faced with similar situations, particularly within the European Union. It provides a clear and methodologically sound example of how domestic contract law and European private international law can interact to ensure substantive justice in cross-border commercial disputes. It also highlights Spain’s evolving role as a forum open to innovative approaches in international dispute resolution.
V. Conclusion
In conclusion, Judgment No. 256/2025 of 6 June 2025 of the Court of First Instance No. 1 of Torrevieja opens an entirely new path in the Spanish legal landscape. When the enforcement of an arbitrato irrituale award in Italy is not feasible—whether because the debtor is domiciled abroad or has no attachable assets—the Spanish contractual performance action under Article 1124 of the Civil Code offers a legally robust alternative. By treating the arbitrato irrituale award as a contractual obligation rather than a judicial decision, the court has provided an elegant and effective solution to a problem long considered intractable.
This landmark ruling demonstrates that the boundaries of enforcement are not confined to the formal categories of arbitration law but may also be shaped by the principles of contractual autonomy and good faith. It stands as a precedent of both theoretical and practical significance, inviting renewed reflection on the interplay between arbitration and contract in international dispute resolution.
