Contributed By Cases & Lacambra
In Spain, arbitration is the dispute resolution procedure of choice. Indeed, arbitral awards are automatically enforceable before ordinary courts (Article 517.2.2 of the Spanish Procedural Law, Act 1/2000, of 7 January 2000).
However, some domestic parties are still reluctant to use arbitration to resolve their disputes, although the prevalence of arbitration has increased because judicial proceedings are too slow in some parts of Spain.
With respect to international arbitration proceedings, Article 3 of the Spanish Arbitration Act 60/2003 of 23 December 2003 (SAA) states that arbitration proceedings shall be considered international when any of the following circumstances apply:
Therefore, under Spanish law, arbitration proceedings will be considered international only in those cases.
Between 2021 and 2023, international arbitration has increased exponentially in fields that require higher levels of expertise.
This is the case for the construction and energy industries, in which it is quite common for the contracting parties to agree to submit their disputes to international arbitration due to the specific expertise required for the resolution of those kinds of proceedings.
Moreover, because of the COVID-19 pandemic, litigation has increased considerably during 2021–22 in the construction and energy industries. It is difficult to identify any industries that have experienced decreased international arbitration activity.
In Spain, the most frequently used international arbitration court is the Court of Arbitration of the International Chamber of Commerce (ICC).
Moreover, until 2020 there were four arbitral institutions in Spain used for international arbitration:
However, on 1 January 2020, the Madrid International Arbitration Center (Centro Internacional de Arbitraje de Madrid – CIAM) began its activity.
CIAM was created following an agreement reached between the Madrid Court of Arbitration, CIMA and the Spanish Court of Arbitration to promote international arbitration in Spain.
In Spain, there are no specific national courts to hear disputes related to international arbitrations and/or domestic arbitrations.
However, there are some national courts that have specific powers regarding international arbitration.
For instance, the courts of first instance (Juzgados de Primera Instancia) are entitled to recognise and enforce international arbitration awards per Article 8.6 of the SAA, while the high courts of justice (Tribunales Superiores de Justicia) have jurisdiction to hear appeals for the annulment of awards.
In Spain, the governing law on arbitration is the SAA, which includes both domestic and international arbitration.
This law draws heavily on the United Nations Commission on International Trade Law of 21 June 1985 (the UNCITRAL Model Law). Key similarities include the requirements for a valid agreement to submit to arbitration and the adoption of interim measures in arbitration proceedings.
However, it should be noted that, in addition to the SAA, Spanish law also incorporates the provisions relating to international arbitration established in treaties ratified by Spain or contained in national laws with special provisions on arbitration.
The main differences between the SAA and the UNCITRAL Model Law include:
The Spanish arbitration legislation has not been modified in recent years.
According to Article 9.1 of the SAA, to be valid under Spanish law, an arbitration agreement has to express the parties’ willingness to submit to arbitration all or some disputes that may arise from their legal relationship. In this sense, the Spanish law follows Article 7 of the UNCITRAL.
Therefore, the key aspect to be considered in an arbitration agreement is to clearly state the intention of the parties to submit their dispute to arbitration.
In addition, an arbitration agreement must be made in writing and signed by both parties or exchanged in communications between the parties which provide a record of the agreement (Article 9.3, SAA).
On the other hand, in international arbitrations, the SAA expressly provides that the arbitration agreement will be valid if it meets the requirements stated by the law chosen by the parties to govern the arbitration agreement, by the law governing the merits of the case or by Spanish law (Article 9.6, SAA).
Under Spanish law, the matters that cannot be submitted to arbitration are matters excluded from the free disposition of the parties. These would be considered non-arbitrable matters (Article 2.1, SAA). Moreover, Article 1.4 of the SAA excludes labour disputes from the scope of the law and, in addition, there are matters excluded from arbitration for reasons of public order, such as disputes related to personal capacity or filiation.
Regarding the determination of the law applicable to the arbitration agreement, the main rule is the freedom of choice of the parties. In international arbitration, if there is no choice, Article 9.6 of the SAA provides that the arbitration agreement will be valid if it meets the requirements stated by the law governing the merits of the case or by Spanish law.
The Spanish courts follow this rule and do not intervene in those cases in which they lack jurisdiction unless expressly provided for by the SAA, as set forth in Article 7 of the SAA.
In this regard, in cases where there is an arbitration agreement, the national courts will refrain from hearing the dispute and will accept the decision of the parties to submit to arbitration.
Likewise, if there is an arbitration agreement between the parties, the opposing party may also allege the lack of jurisdiction of the court through a motion for lack of jurisdiction.
If the contract in which the submission to arbitration clause is contained is invalid, the arbitration clause will not be affected by the invalidity. The arbitration clause is considered a separate legal stipulation from the main contract regardless of whether it is set as a clause within the contract itself or as a separate contract.
In this sense, the principle of competence-competence is expressly recognised in Article 22 of the SAA. This principle states that arbitrators are empowered to decide on their own jurisdiction, including any plea related to the existence or validity of the arbitration agreement, or any other pleas, the acceptance of which would prevent the consideration of the merits of the case.
According to Article 15 of the SAA:
In addition, it should be noted that the arbitrators cannot be legal entities, and there is no maximum limit to the number of arbitrators as long as they are odd-numbered.
The parties are free to agree on a procedure to appoint the arbitrator(s), but, if the arbitrator(s) cannot be appointed under that procedure, any party may apply to the competent court to appoint the arbitrators or, as appropriate, to adopt the necessary measures.
For those cases, Article 15 of the SAA establishes the following procedure to appoint the arbitrator(s):
If the arbitration is administered by an arbitration institution, the latter will apply its own rules for appointing arbitrators.
As stated in Article 8.1 of the SAA, the Spanish courts will intervene in the selection of the arbitrators when it has not been possible to appoint the arbitrator(s) by the method stipulated by the parties, in the following cases:
The SAA is flexible in relation to the procedure for challenging arbitrators. It allows the parties to agree on the challenge procedure they deem most appropriate.
However, in the absence of an agreement, the party challenging an arbitrator shall state the reasons for the challenge within 15 days of becoming aware of the acceptance or of any circumstances that may give rise to justifiable doubts as to the arbitrator’s impartiality or independence.
Unless the challenged arbitrator withdraws from their position or the other party accepts the challenge, it shall be for the arbitrators to decide on the challenge.
The grounds on which the arbitrators may be challenged must be based on whether there are circumstances giving rise to justifiable doubts as to their impartiality or independence, or as to whether they possess the qualifications agreed upon by the parties.
The arbitrator must be impartial and independent. To avoid being challenged, they must remain independent and impartial throughout the arbitration (Article 17.1, SAA).
Despite the fact that no definitions of independence and impartiality are established in Spanish law, they usually consist of maintaining the absence of any personal, professional or commercial relationship with the parties, and should an arbitrator have any impediment that prevents them from meeting these requirements, they must disclose this information at the time of their appointment and without delay.
In this regard, we must point out that the Spanish Arbitration Club approved the Code of Best Practice, which includes recommendations regarding the arbitrators’ standards of independence.
As set out in Article 2.1 of the SAA, only disputes on matters of free disposal according to law can be the subject of arbitration procedures.
In this sense, matters for which arbitration is not freely accessible to the parties include the following:
In accordance with Article 22 of the SAA, the arbitrators appointed in an arbitration procedure are fully empowered to decide on their own jurisdiction (the competence-competence principle). This includes the power to decide if the arbitration agreement exists or if it is valid.
A court may address issues of jurisdiction of an arbitral tribunal if a party files a claim with the court despite the fact that the parties have agreed on an arbitration clause. In this case, the defendant could file a motion for lack of jurisdiction invoking the existence of the arbitration agreement and could request the court to refrain from ruling on the matter. All of this is settled in accordance with Article 11.1 of the SAA and Article 63 of the Spanish Civil Procedure Law.
If the existence of the arbitration agreement can be clearly proved, the Spanish courts will refrain from intervening in the procedure.
The SAA does not establish the option for Spanish courts to review negative decisions on jurisdiction by arbitral tribunals, although jurisdiction may be reviewed by means of an action for annulment of the award (Article 41, SAA).
The parties can only challenge the jurisdiction of an arbitral tribunal before the courts when an award has been issued (interim or final), since Article 22 of the SAA grants exclusive jurisdiction to the arbitrators to decide on their own jurisdiction.
Therefore, the decision of the arbitrators on their own jurisdiction can only be challenged through the exercise of an action for annulment of the award, without prejudice to the fact that the parties could allege before the arbitral tribunal its lack of jurisdiction in their first writ of allegations.
The Spanish courts will analyse the specific jurisdiction of the arbitral tribunal through a deferential review.
In the event that a party files a claim when it should have initiated arbitration proceedings due to the existence of an arbitration agreement, the court should act in accordance with the arbitration agreement unless it considers it to be invalid.
It should also be noted that the parties may modify the submission made to arbitration by tacitly submitting the dispute to the courts. Thus, if a claim has been filed with a court despite the fact that the parties have agreed on an arbitration clause and the opposing party replies to the claim without objecting to the jurisdiction of the tribunal within ten days, it will be understood that the parties have agreed to submit their dispute to the jurisdiction of that court.
Spanish law does not recognise the capacity of arbitral tribunals to uphold jurisdiction over persons or entities that are not parties to the arbitration agreement.
However, there are certain cases in which it has been accepted that arbitration agreements may affect non-signatory parties if they have a close and strong relationship with the signatories or play a relevant role in the execution of the contract submitted to arbitration.
Article 23 of the SAA establishes that arbitrators may, at the request of a party, adopt the precautionary measures that they deem necessary in relation to the object of the proceedings. In such cases, arbitrators may require the claimant to furnish sufficient security.
The SAA does not detail any specific interim measures and, therefore, arbitrators commonly apply by analogy some of the measures listed in Article 727 of the Spanish Procedural Law (Act 1/2000, of 7 January 2000), such as preventive seizure of goods, judicial intervention or administration of productive goods, goods depository, etc.
The competence to adopt precautionary measures in the framework of arbitration procedures vests in the arbitrators themselves. However, to achieve effective compliance, the collaboration of the courts is often necessary.
Moreover, it is worth mentioning that the national courts can grant interim measures in aid of international arbitration in accordance with Article 722 (first paragraph) of the Spanish Procedural Law (Act 1/200, of 7 January 2000), which regulates interim measures in arbitration proceedings and foreign litigation. This provision determines that whoever can prove to be a party to an arbitration agreement may seek injunctions from the court prior to or during the arbitration proceedings.
According to Article 722 of the Spanish Procedural Law, whoever can prove to be a party to any judicial or arbitration proceedings being conducted in a foreign country can request interim measures in Spain, except in the cases where the main matter at issue should lie solely within the competence of Spanish courts.
Although the SAA does not regulate the use of emergency arbitrators, the Madrid International Arbitration Center’s Arbitration Rules include a specific procedure for the request of urgent interim measures by any of the parties. By means of this procedure, the parties have the ability to obtain provisional protection of their rights and interests when a situation arises that does not allow them to wait for the establishment of the arbitral tribunal (Articles 58-67, CIAM’s Arbitration Rules).
In this sense, the decision of the emergency arbitrators will be binding for the parties and will cease to be binding if the court terminates the request for emergency arbitration or if the request for arbitration has not been filed within the established time limit, among other reasons.
In this regard, the arbitrators of the main proceedings will have the ability to modify, suspend or revoke the decision of the emergency arbitrator, provided that one of the parties requests it.
When interim relief is requested in an arbitration procedure, the arbitrators can, in accordance with Article 23 of the SAA, require the requesting party to pay a bond to ensure that they can repay the damages that the requested measure could potentially cause to the other party.
In Spain, the principle of party autonomy, regulated in Article 25.1 of the SAA, governs the arbitration procedure.
Therefore, the only mandatory rule that governs the arbitration procedure is respect for due process rights (ie, the right to be heard and the equal treatment and contradiction of the parties).
As mentioned in 7.1. Governing Rules, the principle of party autonomy will govern the arbitration procedure, respecting the principles of due process and equal treatment in all cases.
Spanish national law does not contain a list of arbitrators’ duties and powers. However, they include the following.
It should be pointed out that the Spanish Arbitration Club has approved the Code of Best Practice, which includes recommendations regarding the arbitrators’ duties.
The SAA does not include legal provisions that provide for particular qualifications or other requirements for legal representatives, beyond requiring that the representative has sufficient powers to act as such.
As regards the collection and submission of evidence at the pleading stage and at the hearing in the Spanish jurisdiction, it should be noted that the parties are free to choose the applicable rules of evidence, subject to the requirements adopted by the arbitration institution where the arbitration takes place.
Thus, as for the existence of specific rules applicable to the different types of evidence, the arbitrator may order the disclosure of documents and the appearance of witnesses. They may even request the assistance of the competent court in the submission of evidence, in accordance with Article 33 of the SAA.
In this regard, with respect to the possibility of one party to disclose documents to the other party or the arbitrator, it should be noted that the parties may fix the rules and scope of disclosure by mutual agreement, which must be approved by the arbitrator.
According to the SAA, the parties and the arbitrator will have full freedom and flexibility in the evidence phase. Thus, as long as the principles of equality and contradiction are complied with, there is no difference between international arbitration and national proceedings.
In this regard, if the arbitration is administered by an arbitral institution, the rules of evidence could be those established by that particular institution.
On the other hand, if the arbitration is an ad hoc arbitration and the parties have not agreed on the rules of evidence, the arbitrators shall determine how it is to be regulated, provided that the principle of equal treatment is granted.
According to Article 33 of the SAA, the assistance of the courts in the collection or submission of evidence may be requested whenever necessary.
It is the first instance court of the place of arbitration or of the place where the assistance is requested that will assist the parties or the arbitrators in the taking of evidence. Such assistance may consist of the collection or submission of evidence by the court itself or the adoption of specific measures to enable the collection or submission of certain evidence.
Article 24.2 of the SAA expressly establishes that the arbitrators, the parties, and the arbitral institutions must respect the confidentiality of the information and documentation provided for in the arbitration proceedings.
The principle of confidentiality affects both the information and documentation related to the merits of the case, as well as the documentation and evidence related to the arbitration proceedings.
The legal requirements for an arbitral award to be valid and enforceable in Spain are set forth in Article 37 of the SAA. They can be summarised as follows:
The six-month period for delivery of the award, unless otherwise agreed, may be extended in a duly justified manner by the arbitrators for a period not exceeding two months.
As to the types of remedies that an arbitral tribunal may award, arbitrators can award both declaratory relief and monetary compensation.
At the same time, arbitrators have the possibility of ordering the specific performance of a contract by one of the parties or the pursuit of a certain action.
However, as regards the existing limits on such remedies, it is necessary to specify that punitive damages do not exist in Spain and, consequently, it could be understood that they are contrary to public policy.
Pursuant to Article 37.6 of the SAA, the arbitrators’ award on the costs of the arbitration shall include the following:
Also, the payment of legal interest concerning the principal sum awarded is generally imposed.
Unless otherwise agreed by the parties, the arbitrators shall decide on the distribution of the costs generated by the arbitration proceedings. Thus, the arbitrators can decide whether to distribute the costs depending on the costs incurred by each party, or whether one party should compensate the other for the costs incurred.
According to Article 41 of the SAA, an award may be set aside if any of the following circumstances is proved:
The party requesting the award to be declared null and void must file a claim with the high court of justice of the Autonomous Community in which the award has been rendered.
Generally, the application for annulment of the award may be filed within a maximum period of two months from the date of receipt of the award by the applicant party. However, when one party (or both) applies for rectification, clarification or supplementation of the award, the time limit will begin from the date of receipt of the decision on the application by the applicant party or from the date of expiration of the time limit for deciding on the application.
The annulment action will be substantiated through the channels of the verbal proceedings, but with the following particularities:
The SAA does not regulate the possibility of excluding or expanding the scope of appeal of the awards since, in the Spanish legal system, there is no second instance in arbitration matters. Instead, there is the possibility of filing an action for annulment on the grounds set out in the law, which in no case affects the merits of the case.
Thus, the voluntary submission of the parties to arbitration has the consequence that the possibilities for appealing the decision arising from the proceedings are limited.
In this regard, it should be noted that the exclusion by the parties of the action for annulment of the award is not allowed under Spanish law.
The standard of judicial review is deferential, since the Courts cannot review the merits of the dispute resolved by the arbitrator.
According to Article 41 of the SAA, an award may be set aside if any of the following circumstances is proved:
As can be seen, the law does not recognise the possibility of applying for the annulment of an award on the grounds that the rules applicable to the merits of the case have been violated.
In July 1977, Spain enforced the Convention on the Recognition and Enforcement of Arbitral Awards, as adopted in New York in June 1958, which is the instrument that generally governs the enforcement of international awards in Spain.
This is established in Article 46 of the SAA. However, it also mentioned that the aforementioned New York Convention will be applicable in the absence of international conventions that are more favourable.
In Spain, the procedure and rules for the enforcement of an award depend on whether the award to be enforced is national or international.
If the award is national, the party seeking to enforce the award simply has to apply for enforcement before the court of first instance of the place in which the award was rendered.
On the other hand, if the award is international, the general rule is that a party must apply for its recognition before the court of justice of the domicile of the party against whom the award is to be enforced, or in the place where the award should produce its effects.
Once it is recognised, enforcement may be sought before the court of first instance of the domicile of the person against whom the award is to be enforced, or where it should produce its effects.
The international relevance of annulment decisions made by the courts in the country in which arbitration took place is controversial. In general, if an award is annulled in the state of origin, it will not be subject to recognition in another state, since, if it is not valid in its state of origin, it cannot be valid in any other jurisdiction.
In any case, denying a foreign award because it has been annulled by a foreign court decision means giving effect, indirectly, to the award in Spain.
In conclusion, there is a wide margin of manoeuvre for Spanish courts not to deny the exequatur of foreign arbitral awards that have been annulled on grounds contrary to Spanish public policy.
On the other hand, if the appeal for annulment of the foreign award is still pending, the Spanish exequatur court may postpone the decision on the enforcement of the award.
Regarding the possibility for a state or state entity to successfully raise a defence of state or sovereign immunity in the enforcement stage, Article 2.2 of the SAA prevents the possibility of a state to oppose the prerogatives of its own law to breach the obligations contained in an arbitration agreement.
Therefore, in 2015, Spain passed Act 16/2015, on State Immunity, which covers the content of the UN Convention on State Immunity (UNCSI) of 2004. In this regard, according to Article 16 of the UNCSI, there is an exception to jurisdictional immunity when there is an arbitration agreement relating to a commercial transaction between the state and a private individual from a different state.
Thus, Article 17 of the UNCSI provides for the immunity of the state from enforcement measures, as it allows enforcement proceedings against assets located in Spain and used for purposes other than official non-commercial ones. In turn, enforcement will be possible when there is a tacit or explicit consent of the state by means of an international agreement, a written contract or a declaration within a judicial proceeding.
The case law of the Spanish courts in relation to the exequatur of foreign awards respects the autonomy of the will of the parties to submit their dispute to arbitration and, consequently, interprets the principle of public policy in a restrictive manner.
Occasionally, there are some decisions that cause some controversy as to the scope and extent of the concept of public policy, but generally the exceptionality of its nature is recognised.
In Spain, the only dedicated regulation pertaining to class-action arbitration is the Royal Decree 231/2008, of 15 February 2008, which regulates the consumer arbitration system.
In general, class action in arbitration is neither ruled out nor adequately covered by current legislation. However, due to the specific characteristics of class actions, it is difficult to carry out an arbitration procedure without specific regulation of these procedures.
In this sense, in class actions brought before the ordinary courts, Spanish law requires, for example, the publicity of the actions in order for the plaintiffs to join the proceeding and request their individual compensation.
Regarding class actions before courts, the bill on representative actions for the protection of the collective interests of consumers is pending approval by the Spanish Parliament. This bill transposes the Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC.
The Arbitration Law does not include ethical codes binding arbitrators and lawyers. Thus, the only requirements are independence and impartiality. However, it is true that arbitrators and lawyers admitted to the bar are obliged to comply with the professional code and the ethical rules applicable to lawyers.
Spanish practitioners are also aware of the guidelines accepted by the International Bar Association and the Spanish Arbitration Club, which include ethical rules.
Arbitration and national laws do not regulate third-party funding. However, there is also no regulation applicable to arbitration or civil procedure that prevents third-party funding.
Regarding class actions filed before courts, the aforementioned Directive (EU) 2020/1828 regulates third-party funding and the draft of the Spanish Law on this matter also foresees third-party funding.
The use of third-party funders in arbitration is commonly accepted. However, the lack of regulation causes some doubts, for example, regarding the costs to be imposed in the award.
The SAA does not regulate the possibility for an arbitral tribunal or court in Spain to consolidate several separate arbitration proceedings.
However, the fact that this aspect is not regulated does not mean that it is prohibited, since it will depend on the procedural rules agreed upon by the parties, in accordance with Article 26 of the SAA.
In this sense, the Madrid International Arbitration Centre provides for the consolidation of several arbitration proceedings (Article 19, CIAM Arbitration Rules).
In conclusion, the agreement of the parties and the internal regulations of the arbitration institution in which the arbitration is being administered must be followed.
It must be taken into account that the scope of the award must be limited to the parties who entered into the arbitration agreement and who participated in the arbitration process. An award does not have effects on third parties who were not able to exercise their right of defence within the arbitration process itself.
When the effects of the award are intended to be extended to third parties who did not participate in the arbitration, they must challenge the award through constitutional channels, as long as there is a direct impact and they affect their constitutional rights.
However, there are certain cases in which it has been admitted that arbitration agreements may affect non-signatories if they have a close and strong relationship with the signatories or play a relevant role in the execution of the contract submitted to arbitration.