Arbitration agreement as an exception to the enforcement order: a fundamental error or incomprehensible logic?

Abstract

In civil procedural law, enforcement proceedings are designed as a procedure to implement, through coercive measures, the rights previously recognized in a judgment or previously established enforceable title. Within enforcement, the debtor has the authority to oppose the enforcement on specific grounds exhaustively provided by procedural law. Recent amendments to the Organic Code of General Processes introduce the existence of arbitration agreements in certain enforceable titles as a form of opposition. However, these amendments contain conceptual flaws that, in practice, may impact procedural efficiency. While the law allows for the inclusion of arbitration agreements in certain enforceable titles, their implementation is improper. In the presence of an arbitration agreement, the ordinary judge should refrain from adjudicating the matter. Seemingly, under the principle of Kompetenz-Kompetenz, this would apply regardless of the type of procedure. However, without the power of imperium, the arbitrator lacks the authority to coercively enforce a title that acknowledges a right.