This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in the Spain including arbitration agreements, tribunals, proceedings as well as costs, awards and the hot topics concerning this country at present.
This Q&A is part of the global guide to Arbitration.
For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/arbitration/
What legislation applies to arbitration in your country? Are there any mandatory laws?
In Spain applies the Law 60/2003, of 20 December, on Arbitration ("Arbitration Law").
Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?
Spain is signatory to the New York Convention without making any reservations.
What other arbitration-related treaties and conventions is your country a party to?
Spain is also signatory of the ICSID Convention made in Washington in 1965 and the Vienna Convention of 1969 on the Law of Treaties.
Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?
Spanish Arbitration Law is profoundly based on the UNCITRAL Model Law without significant differences.
Main differences would be (i) that the number of arbitrators must be an odd number, (ii) that, when not agreed by the parties, the number of arbitrators shall be one and (iii) that there is not provision in the Arbitration Law for denying recognition and/or enforcement to foreign awards.
Are there any impending plans to reform the arbitration laws in your country?
Not at the moment. Law 11/2011, of 20 May, conducted the last reform of the Arbitration Law.
What arbitral institutions (if any) exist in your country?
There are Arbitration Courts in most of the Chambers of Commerce of each Autonomous community.
However, the three most respected institutions are:
- The Court of Arbitration of Madrid Chamber of Commerce ("CAM").
- The Civil and Mercantile Court of Arbitration ("CIMA").
- The Spanish Court of Arbitration ("CEA").
What are the validity requirements for an arbitration agreement under the laws of your country?
It must contain the decision of both parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
The arbitration agreement shall be in writing, meaning that its content is recorded in any form, which can later be accessed in electronic, optic or other platform.
The number of arbitrators must be odd pursuant to art. 12 of the Arbitration Law.
Are arbitration clauses considered separable from the main contract?
Yes they are under art. 22.1 of the Arbitration Law.
Can claims under more than one contract be brought in the one arbitral proceeding? Can an arbitral tribunal with its seat in your country consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
There is no clear provision in the Arbitration Law for this, but it is not prohibited, so that the arbitrators may consolidate claims or proceedings under their powers granted by art. 25 of the Arbitration Law. It is a practice not unknown that actually happens.
How is the law applicable to the substance determined?
The first rule is the agreement and indication by the parties. However, in case of lack of agreement, it will be decided by the arbitrators under their own opinions as provided by art. 34 of the Arbitration Law.
Are any types of dispute considered non-arbitrable? What is the approach used in determining whether or not a dispute is arbitrable?
Yes they are. Art. 2 of the Arbitration Law provides that disputes related to non-disposable matters by the parties cannot be arbitrated.
In your country, are there any restrictions in the appointment of arbitrators?
Further than being an odd number ex art. 12 of the Arbitration Law, the arbitrators must be physical persons in full exercise of their civil rights and whose professional regulations do not impede to act as arbitrators.
Are there any default requirements as to the selection of a tribunal?
If the Tribunal is deciding in law, at least one of the members of the Tribunal must be an expert in law (jurist) (art. 15.1 of the Arbitration Law).
Can the local courts intervene in the selection of arbitrators? If so, how?
Yes they can under art. 15.3 of the Arbitration Law when the methodology agreed by the parties cannot be implemented or produces nor result. In such case, any of the parties can request from the Superior Court of the Autonomous Community the appointment of any missing arbitrator.
The procedure is conducted under the Summary Proceedings (juicio verbal) of Spanish Procedural Act of 2000 ("SPA").
The Court must elaborate a list of three candidates for any arbitrator that needs to be appointed and then choose any of them aleatory.
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for such challenge?
The appointment can be challenged when the arbitrator lacks at any moment of the arbitration proceedings independence or impartiality.
The procedure basically provides that any party must challenge the appointment within 15 days after gaining knowledge of the reason that affects the impartiality or independence of the arbitrator.
Are arbitrators immune from liability?
No, they are liable under art. 21 of the Arbitration Law.
Is the principle of competence-competence recognised in your country? What is the approach of local courts towards a party commencing arbitration in apparent breach of an arbitration agreement?
It is expressly recognized in art. 22.1 of the Arbitration Law and respected by the Tribunals. Courts are evolving and now tend to leave the issue to be decided by the arbitration tribunals, without prejudice of a posterior annulment of the award.
How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods of which the parties should be aware?
There is no special provision. The proceedings begin by the submission of a request by the claimant under the terms agreed by the parties. There are no provisions related to limitation periods. Art. 29 of the Arbitration Law just refer to the terms agreed by the parties.
What is the applicable law (and prevailing practice) where a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate? Can they order third parties to participate in arbitration proceedings?
There are no case law about the courts forcing a party to arbitrate. The courts will intervene appointing the arbitrators and, from that moment on, the arbitrators can decide and render a final award that would be binding for all the parties, even if one party does not want to participate (art. 31 Arbitration Law).
In what instances can third parties or non-signatories be bound by an arbitration agreement or award (e.g. by joinder)?
The new rules of different Arbitration Courts (e.g. CAM new rules in effect since 1 March 2015) expressly recognize this possibility.
What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?
In Arbitration can be requested and adopted the same interim measures that in any other judicial proceedings.
Local Court can indeed issue interim measures before or after the constitution of the tribunal (art. 11.3 Arbitration Law).
Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?
There are no particular rules governing evidence production by the parties or analysis by the arbitrators, who can freely decide. Local courts are committed to help, both the parties and the arbitrators, who can request at any moment their assistance in order to obtain any piece of evidence.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?
The ethical code for Lawyers is applicable to any lawyer intervening, whether as counsel or arbitrator, in arbitration proceedings.
How are the costs of arbitration proceedings estimated and allocated?
There is no provision in the Law. The arbitrations have full power to decide with regard allocation of costs.
Can interest be included on the principal claim and costs incurred?
In Spain that is a matter of substantive law and will depend on the law applicable to the dispute.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?
The arbitration law does not impose any particular limit on the remedies. Local courts will not enforce remedies contrary to Spanish Public Policy (e.g. depriving any party of all of its assets and income below the minimum wages approved by law each year).
What legal requirements are there in your country for the recognition of an award?
Spain is signatory of the New York convention, so the requirements are those provided by art. V of the Convention.
Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?
Awards can be challenged within 2 months from the moment are rendered. The grounds to set aside an award (similar to those to deny enforcement under the New York Convention) would be:
a) that the arbitration agreement does not exist or is not valid;
b) that the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
c) that the award contains decisions on questions not submitted to arbitration;
d) that the appointment of the arbitrators or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with an imperative provision of this act, or, failing such agreement, was not in accordance with this act;
e) that the subject-matter of the dispute is not apt for settlement by arbitration;
f) that the award is in conflict with public policy.
Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?
It is uncertain in Spain. There are reasons to defend both possibilities.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
It may in the same terms than enforcing any other resolution. Spain is party to The United Nations Convention on Jurisdictional Immunities of States and Their Property and its Local Courts will distinguish between actions related to exercise of sovereignty (iuri imperii) and actions related to management and administration of private assets (iuri gestionis).
Are there rules or restrictions on third-party funders in your country?
The are no rules, and third party funding is not yet properly developed.
Is there a concept in your country providing for class-action or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?
Class actions are not foresaw in Spanish Procedural Law nor in the Arbitration Law.
Is diversity in the choice of arbitrators (e.g. gender, age, origin) actively promoted in your country? If so, how?
Diversity is not actively promoted in the Spanish regulation of arbitration but the different organizations make efforts to achieve it.
Is emergency arbitrator relief available in your country? Is this actively used?
It is not prohibited by Law and will depend in the Rules of arbitration chosen by the parties. Most of the Arbitration Rules of the main institutions provide for Emergency Arbitrator.
Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?
The Spanish Arbitration Club has promoted transparency in arbitration by publishing the awards.
Are efforts being made by arbitration institutions or local courts to impose strict deadlines for the rendering of awards?
Arbitration Law provides a time frame of 6 months since the answer of the claim for the arbitration proceedings to be concluded. But this period can be extended by agreement of the parties.
Have steps been taken in your country to publish reasoned decisions on arbitrator challenges and provide more insight into the drivers behind arbitrator selection by institutions?
There are current discussions between the main institutions but no decision has been adopted yet.
Are there arbitral laws or arbitration institutional rules in your country providing for simplified procedures for claims under a certain value?
The Rules of the Court of Arbitration of Madrid Chamber of Commerce provide in their art. 51 for an abbreviated procedure. Other Arbitration courts also have it.