Spain: Arbitration

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in Spain.

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/

  1. What legislation applies to arbitration? Are there any mandatory laws?

    Arbitration proceedings in Spain are governed by the Spanish Arbitration Act 60/2003, of 23rd December 2003 (hereinafter referred to as “SAA”). The SAA applies without prejudice to: (i) the provisions of the treaties expressly ratified by Spain; or (ii) specific Spanish regulations containing provisions related to arbitration (such as intellectual property and consumer protection laws).

    No exhaustive list of mandatory rules is contained in the SAA. Nevertheless, Section 21.1 of the SAA should be mentioned due to the fact that it imposes a mandatory obligation for arbitrators to obtain a professional liability insurance.

    Other rules are also considered mandatory, such as the provisions ensuring the right to be heard and the equal treatment of the parties (partially referred to under Section 24 of the SAA).

  2. Is the country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

    Spain ratified the 1958 New York Convention on the 29th April 1977. Spain made no reservations to the Convention. Once ratified by Spain, the original text of the Convention formed part of the Spanish legal system.

  3. What other arbitration-related treaties and conventions is the country a party to?

    On the 5th of March 1975, Spain ratified the European Convention on International Commercial Arbitration of 21 April 1961.

  4. Is the law governing international arbitration based on the UNCITRAL Model Law? Are there significant differences between the two?

    The SAA does follow the principles established by the UNCITRAL Model Law. Nevertheless, the SAA establishes certain differences in order to promote arbitration within the Spanish jurisdiction, being the most notable differences the one listed below:

    • In 2011, an amendment to the SAA was introduced by Law 11/2011, of May 20th. Since then, Section 21.1 of the SAA establishes that the arbitral institutions are obliged to watch over the capacity of arbitrators, the transparency in their designation and their independence throughout the arbitral proceedings. Additionally, arbitral institutions and arbitrators must subscribe to professional liability insurance.
    • Any person appointed as sole arbitrator must be a jurist, except if the matter is to be decided ex aequo et bono, unless expressly agreed otherwise by the parties within the arbitration clause. In the case of a three-member panel, at least one arbitrator must be a jurist. The term jurist is used as opposed to a practicing lawyer (term originally used under Section 12.2 of Law 36/1988, of December 5th on Arbitration, which was repealed by the SAA) so as to include academics and other legal professionals who are not lawyers. In addition, the arbitrator(s) must not have acted as a mediator in the same dispute.
    • Issuing an arbitral award after the expiry of the deadline does not constitute grounds for annulment of the award, without prejudice to the arbitrators' liability.
    • Arbitral awards must be reasoned (except awards on agreed terms) and parties cannot agree otherwise.
    • The SAA allows the arbitrators to state in the award if they vote for or against the final decision. This is also intended as a measure to avoid the dissenting arbitrator’s liability.
    • The parties may request that the arbitrators correct an arbitral award on an excess of jurisdiction, in addition to supplementing omitted petitions. The referred measure is aimed at avoiding unnecessary actions to set aside awards.
  5. Are there any impending plans to reform the arbitration laws?

    Nowadays, there are no impending plans to reform the SAA. The latest amendments to the SAA took place in 2011 through the entry into force of Law 11/2011, of May 20th, which amended the Law 60/2003, of December 23rd.

  6. What arbitral institutions (if any) exist? Have there been any amendments to their rules or are there any being considered?

    To date, the Court of Arbitration of the International Chamber of Commerce is the most used institution for international arbitration in Spain.

    However, other arbitral institutions ─such as the Court of Arbitration of the Official Chamber of Commerce and Industry of Madrid─ have also got a trustworthy reputation inside our territory. The latest modifications to the rules of the Court of Arbitration of Madrid took place two years ago. Concretely, the former rules expired on the 28th of February 2015, entering the actual rules into force on the 1st of March 2015.

  7. What are the validity requirements for an arbitration agreement?

    Section 9.1 of the SAA states that an arbitration agreement may adopt the form of a clause in a contract or the form of a separate agreement. Either if the arbitration agreement adopts one form or another, the arbitration agreement shall express the willingness of the parties to submit to arbitration all or certain disputes arising between them in respect of a specific legal relationship, whether contractual or non-contractual.

    Therewith, Section 9.2 of the SAA establishes that in case an arbitration agreement is included in a standard form of contract, its validity and its interpretation shall be governed by the rules applicable to such contract.

    Section 9.3 of the SAA states that for an arbitration agreement to be valid it should be made: (i) in writing; (ii) in a document signed by the parties; or, (iii) in an exchange of letters, telegrams, telex, facsimile or any other means of telecommunications that ensures that a record of the agreement is kept.

    This requirement is fulfilled when the arbitration agreement appears and is accessible for its subsequent consultation in an electronic, optical or any other format.

    Regarding international arbitration, Section 9.6 of the SAA specifies that an arbitration agreement shall meet the requirements of the rules of law chosen by the parties to govern the arbitration agreement, or by the applicable substantive law, or by Spanish law in order to be reputed valid (and the dispute to be arbitrable).

  8. Are arbitration clauses considered separable from the main contract?

    Under the Spanish legal system, the arbitration agreement may adopt the form of either a separate agreement or an arbitration clause included in the main contract. Such possibility is contemplated in Section 9.1 of the SAA.

    Either if the arbitration clause adopts the form of a separate agreement, or, if it is included in a contract’s clause, the SAA requires that such clause must be in writing, in a document signed by the parties or an exchange of letters, telegrams, faxes or other telecommunication methods that ensure a record that the agreement has been reached (Section 9.3 SAA).

  9. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?

    The SAA includes a legal reference to multi-party arbitration under Section 15.2.b). If the number of arbitrators is three or more, both the claimants and the respondents appoint their own co-arbitrator. However, if the claimants or the respondents are not able to agree on the appointment of their respective co-arbitrator, the court will appoint all the arbitrators.

    Under Spanish legislation there is no other legal reference to multi-party arbitration. However, Spanish arbitration institutions have included multi-party and multi-contract provisions in their rules.

  10. How is the law applicable to the substance determined?

    The parties to an arbitration agreement may determine which law or rules of law will be applicable to the substance, and, therefore, the arbitral tribunal shall decide the dispute in accordance with such provisions (Section 34 of the SAA). Only if the parties authorize the arbitrator to decide a matter ex aequo et bono, may the arbitrator solve the dispute according to the solution which he/she considers most equitable.

    Any designation of the law or legal system of a State is deemed to refer directly to the substantive laws of the respective State. In the absence of a relating agreement by the parties, the arbitral tribunal may directly – without resorting to conflict-of-law rules – apply the law it considers most appropriate.

  11. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?

    Section 2 of the SAA determines that disputes on matters which are considered by law as disposable may be settled throughout arbitration. In Spain, the SAA provides that only disputes relating to matters within the free disposition of the parties may be subject to arbitration, specifically excluding arbitrations related to labor matters from its scope of application. Criminal matters and certain specific civil matters (such as parental issues) would also be beyond the scope of application of the Spanish Arbitration Act.

  12. Are there any restrictions in the appointment of arbitrators?

    Spanish legislation has certain restrictions as to who may serve as arbitrator. No legal entity may serve as an arbitrator, only individuals.

    There is no limit to the number of arbitrators, provided they are odd in number. If there is no agreement as to the number of arbitrators, only one arbitrator will be appointed.

    Under article 15.1 of the SAA, unless the parties agree otherwise, the sole arbitrator must be a jurist; however, this is not required if the arbitrator must decide the dispute ex aequo et bono. In a tribunal formed by three or more arbitrators, at least one of them must be a jurist.

  13. Are there any default requirements as to the selection of a tribunal?

    Section 15.2 of the SAA provides for a default procedure in case the method agreed between the parties fails:

    1. in an arbitration with a sole arbitrator, an ordinary Court will appoint the arbitrator upon the request of any of the parties;
    2. if there are to be three arbitrators, each party shall nominate one arbitrator, and the two arbitrators thus appointed shall nominate the third arbitrator, who shall act as the chairman or president of the arbitration tribunal. If a party fails to nominate an arbitrator within 30 days of receipt of the demand to do so from the other party, the appointment of the arbitrator shall be made by the competent ordinary Court, upon request of any of the parties. The same procedure shall apply when the two arbitrators cannot reach an agreement on the third arbitrator within 30 days of the last acceptance of any of the two first appointed arbitrators;
    3. where there are multiple claimants or respondents, the former shall nominate one arbitrator and the latter another. If the claimants or the respondents do not agree on their nomination of the arbitrator, an ordinary Court will appoint all the arbitrators upon the request of any of the parties; and,
    4. in arbitrations with more than three arbitrators, the competent ordinary Court shall appoint all of them upon the request of any of the parties.
  14. Can the local courts intervene in the selection of arbitrators? If so, how?

    According to article 15.3 of the SAA, if arbitrators cannot be appointed under the procedure agreed to by the parties, or, absent an express agreement to appoint an/a arbitrator/s, any party may request the competent Court to appoint the arbitrators or, as appropriate, to adopt the necessary measures therefore.

  15. Can the appointment of an arbitrator be challenged? What is the procedure for such challenge? Has there been an increase in number of challenges in your jurisdiction?

    The SAA is very flexible when governing the process to challenge or remove arbitrators, with article 18 of the said Act leaving the setting of such process to the parties.

    Failing to agree on a procedure for challenging arbitrators, a party who intends to challenge an arbitrator will state the grounds for the challenge within fifteen days after becoming aware of the acceptance or of any circumstance that may give rise to justified doubts about the arbitrator’s impartiality or independence.

    Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitrators will decide on the challenge.

    If the challenge under any procedure agreed upon by the parties or laid down in the preceding item is not successful, the challenging party may submit the challenge as grounds for objecting to the award.

  16. What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?

    The truncated tribunal doctrine has an essential purpose which is to combat intentional arrangements between an arbitrator and the party that appointed him or her; arrangements that result in the need to reappoint the arbitral tribunal by engaging a new arbitrator, which entails an objective delay and, as the case may be, the need to conduct again the proceedings before the reconstituted tribunal, on account of the strategic resignation or withdrawal of that party-appointed arbitrator.

    Consequently, it is now considered that this withdrawal of the party-appointed arbitrator, usually by agreement, with an illegitimate procedural strategy, “truncates” the existing arbitral tribunal, forcing its reconstitution or reintegration with the resulting financial losses because of the new payments that must be made, and the objective procedural delay, which entails a burden on the pending dispute and litigation (see the Provincial Court of Madrid’s Ruling issued on the 27th of October 2014 and the Spanish Supreme Court ruling issued on the 15th of February 2017).

  17. Are arbitrators immune from liability?

    Section 21.1 of the SAA determines that acceptance requires arbitrators, and, arbitral institutions ─in the event that an institutional arbitration was chosen by the parties─ to comply with such an assignment in good faith. Should they; (i) not comply in good faith; and/or (ii) act recklessly or fraudulently, they would be incurring in legal liability damages. Under institutional arbitration proceedings, the damaged person will be allowed to direct a lawsuit against the injurer.

    Arbitrators and arbitral institutions are obliged under Spanish law to contract a liability insurance policy. Nevertheless, public entities and arbitral systems which are integrated in governmental authorities are exempted from this obligation.

  18. Is the principle of competence-competence recognised? What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?

    The principle of kompetenz-kompetenz is expressly admitted in Spain. Section 22 of the SAA clearly states that arbitrators can adjudicate on their own jurisdiction.

    Furthermore, the decision of the arbitrators on their jurisdiction may only be challenged by means of an application to set aside the final −or a separate− award on jurisdiction.

    A Spanish Court can only address the question of the jurisdiction and competence of the arbitral tribunal when one of the parties commences a proceeding in apparent breach of an arbitration agreement, or when the award rendered by the arbitral tribunal is being challenged or the enforcement order is appealed on the basis that the arbitral tribunal's decision on jurisdiction was wrong.

  19. How are arbitral proceedings commenced? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?

    According to Section 27 of the SAA, unless otherwise agreed by the parties, arbitration will commence on the date on which a request to submit the dispute to arbitration is received by the respondent.

    Section 5 of the SAA, determines that except as otherwise agreed by the parties and excluding communications issued as part of court proceedings, the following provisions will apply:

    • Any written communication is deemed to have been received on the day it is delivered to the addressee personally or to his place of business, habitual residence or mailing address.
    • The time limits defined under the SAA will be counted from the day after receipt of the notification or communication. If the last day of the period is a holiday at the place of receipt, the time limit will be extended to the next business day. When a document is to be submitted within a given time obligation, that obligation will be regarded as met if it is sent within that time, regardless of when it is received. For these purposes, days will be understood to mean calendar days.

    Regarding the delivery of the award by the arbitrator/s, Section 37.2 of the SAA establishes that, subject to any contrary agreement by the parties, the arbitrators must deliver the award within 6 months of the date of submission of their statement of defence. Unless otherwise agreed by the parties, this term may be extended by the arbitrators for a period no longer than 2 months under a duly justified decision. Subject to any contrary agreement between the parties, failure to deliver the award within the time limit will not affect the validity of the arbitration agreement or of the award delivered, without prejudice to the liability that may be incurred by the arbitrators.

    As to the correction and interpretation of the award rendered by the arbitrator, Section 39 SAA establishes that within 10 days of notification of the award, unless another time limit has been agreed upon by the parties, a party may request the arbitrators for any of the following:

    • Correction of any error contained in the award, for example, mathematical and/or typing errors;
    • An interpretation of a specific point or part of the award;
    • A supplement to the award on claims requested in the proceedings and omitted from the awards; and,
    • The rectification of the award when the final decision rendered by the arbitrator has dealt with matters which were not subject to the arbitral clause and/or non-disposable matters.

    Finally, Section 43 SAA establishes that arbitral awards constitute res judicata. Therefore, arbitral awards may only be set aside through an annulment action. Adittionaly, arbitral awards may also be subject to review according to Section 512 of the Spanish Civil Procedural Act. The referred rule determines that in no case may the review be sought after five years since the date of publication of the judgment (award) intended to challenge.

    Concerning the subject matter of the arbitration, the applicable statute of limitations should be there awarded under the substantive law governing the dispute.

  20. What happens when 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?

  21. In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?

    Section 2.2 of the SAA denies the possibility of a state or a state entity to oppose the prerogatives of its own law in order not to comply with obligations resulting from an arbitral agreement.

    Nevertheless, a ruling issued by the Spanish Constitutional Court (TC 107/1992) confirmed its immunity from enforcement and that the premises and assets of diplomatic missions and consulates cannot be seized according to Section 21.2 of the Judicial Power Act, the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963.

  22. In what instances can third parties or non-signatories be bound by an arbitration agreement or award?

    Spanish law does not give a tribunal power to assume jurisdiction over individuals/entities that are not actually a party to the arbitration agreement. However, certain case law in Spain has admitted that arbitration agreements may bind non-signatories if they have had a very close and strong relationship with one of the signatories and/or played a relevant role in the performance of the contract subject to arbitration (the so-called "tacit acceptance of the arbitration agreement").

    This issue has to be analysed on a case-by-case basis, given that there is no specific case law in Spain applicable on a general basis (the decision of the Supreme Court of 9 July 2007 may be cited as being contrary to the extension of the arbitration clause to non-signatories and the decision of the Supreme Court of 26 May 2005 as being favourable to such extension).

  23. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

    Unless otherwise agreed by the parties, an arbitral tribunal is entitled to issue interim measures connected with the subject matter of the dispute (article 23 of the SAA). Such interim measures are enforceable before any Court, and the same provisions relating to the setting aside and enforcement of awards apply.

    The interim measures that may be granted by an arbitrator are those generally accepted in Spain, the purpose of which is to secure the potential future enforcement of any award issued. These may include attachments and freezing orders, deposits, registrations in public registries, orders to provisionally cease if deploying any specific conduct, and, in general, any relief which is suitable to protect the effectiveness of the future enforcement of the award.

    Under Spanish law, interim relief may be requested either before the ordinary Courts or before the arbitrators (if the parties did not expressly agree to prevent arbitrators from doing so). If the interim relief is requested before the ordinary Courts the applicant must provide evidence about the existence of the arbitration agreement and the existence of the arbitration process.

    Petitions for interim measures will ordinarily be applied before ordinary Courts when the requesting party intends to enforce these measures against third parties that are not bound by the arbitration agreement.

    Applications of a party before a Court to grant interim relief in support of arbitration will have no negative effect on the jurisdiction of the arbitral tribunal.

  24. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?

    The applicable rules of evidence will be chosen by the parties. If the arbitration is administrated by any particular institution, it would be the rules of such institution which would govern the evidence within the arbitration process. If it is an ad hoc arbitration and the parties have agreed no rules on evidence (for instance, the IBA), the arbitrators have wide powers to decide on these, always respecting the principle of equal treatment of all parties, allowing them sufficient opportunity to present their case.

    In practice, any arbitral tribunal may apply to the Spanish Courts for assistance in the gathering and ordering of admitted means of evidence, but only in support of a request produced by the arbitral tribunal (article 8.2 of the SAA).

  25. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings?

    No particular rules are applied here, other than those generally applicable to Spanish attorneys acting before the Courts.

    Counsel must always comply with the rules applicable to proper general conduct, which are mainly related to the principle of good faith towards the arbitrators and adverse party. These same rules apply to any foreign counsel acting in Spain within any arbitration process. There are no specific rules governing the conduct of Spanish counsel acting in arbitrations abroad, and this matter should be addressed under the rules applicable to the seat of the arbitration.

    As opposed to appearances before Spanish Courts, where the presence of a lawyer admitted to practice in Spain is needed, there is no specific rule restricting the appearance of lawyers from other jurisdictions in arbitration processes and, sometimes, foreign lawyers have indeed acted as counsels within arbitrations held in Spain.

  26. How are the costs of arbitration proceedings estimated and allocated?

    Unless otherwise agreed by the parties, the award shall establish the costs to be borne by each party (Section 37 SAA).

    The arbitral costs will include arbitrators’ fees and expenses, and, as appropriate, the fees and expenses of the parties’ defence or representatives, the cost of the service rendered by the institution conducting the arbitration and all other expenses incurred in the arbitral proceedings.

    Failing an agreement between the parties, the arbitrators are entitled to decide on the distribution of costs. Costs usually “follow the event”. However, the arbitrators may also decide in the award that one of the parties shall compensate the other party for the incurred costs and expenses.

  27. Can pre- and post-award interest be included on the principal claim and costs incurred?

    Yes, pre- and post-award interest, may be included on the principal claim.

    Under Spanish law the parties may have agreed to capitalize interest in order to accrue additional interest.

    The general principle is that the applicable interest rate will be agreed between the parties. Failing agreement between the parties, the applicable interest rate will be the legal interest rate approved by the Spanish Government every year (3% per annum in 2017). In the event of commercial receivables, the interest rate of Act 3/2004 of 29 December 2004 may apply. This interest rate is equal to the interest rate applied by the CEB to its most recent financing transaction, plus 7%.

    Costs are ordinarily not subject to interest.

  28. What legal requirements are there for the recognition of an award?

    Article 37 of the SAA sets forth the legal requirements that an award must contemplate in order to be valid, and therefore, to be recognized:

    1. it must be made in writing and signed by the arbitrators;
    2. it must be reasoned, unless dictated under consent of the parties;
    3. it must contain the date and place of issuance;
    4. it must decide on costs and expenses of the arbitration, respecting the agreement of the parties in this respect; and,
    5. it must be duly served on all parties to the arbitration.
  29. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?

    Spanish law does not allow punitive damages. Be that as it may, when the contract contains provisions for punitive damages, arbitrators may grant them if the conditions provided for in the contract are met, carefully assessing their proportionality, based on the principle of free will of the parties.

    However, the enforcement of this kind of damages in Spain may prove complicated as it could give grounds to one of the arguments to challenge an award based on principles of public order.

  30. Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?

    Section 41 of the SAA provides the grounds on which an award can be challenged, stating that an award may be set aside when the applicant demonstrates:

    1. That the arbitration agreement does not exist or, if it does exist, is void.
    2. The applicant has not been notified about the appointment of an arbitrator or about any order or when the applicant has not been able to exercise its rights.
    3. When the arbitrators have adjudicated matters that were not subject to their decision.
    4. When the appointment of the arbitrators and/or the proceeding is in breach of the agreement of the parties, or, failing such agreement or when such agreement is contrary to the SAA, when such appointment or the proceedings were made in breach of the SAA.
    5. When the arbitrators have decided on matters that may not be subject to arbitration.
    6. When the award is contrary to public order.

    Any challenge against an award must be filed within two months as of the date of serving of the award and before the Superior Court of Justice corresponding to the seat of arbitration. Within the challenge, the applicant must provide all supporting documentation and propose any relevant means of evidence. The Court will serve the challenge to the adverse party, which will have a 20-business-day term to oppose, also providing documentation and proposing relevant means of evidence. A hearing may take place if requested by the parties and/or when any admitted means of evidence must be executed before the Court. After the hearing, or when no hearing takes place, the Court will issue its judgment, which is final and not subject to further appeal.

  31. 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)?

    The parties cannot exclude or expand the scope of appeal or challenge under the Spanish Arbitration Act.

    An award may be set aside only if the applicant alleges and proves (Section 41 of the SAA):

    1. that the arbitration agreement does not exist or is not valid;
    2. 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;
    3. that the award contains decisions on questions not submitted to arbitration;
    4. 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;
    5. that the subject-matter of the dispute is not apt for settlement by arbitration;
    6. that the award is in conflict with public policy.

    The grounds contained under Section 41 of the SAA are numerous clausus and must always be respected.

  32. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    Section 2.2 of the SAA denies the possibility of a state or a state entity to oppose the prerogatives of its own law in order not to comply with obligations resulting from an arbitral agreement.

    Nevertheless, a ruling issued by the Spanish Constitutional Court (TC 107/1992) confirmed its immunity from enforcement and that the premises and assets of diplomatic missions and consulates cannot be seized according to Section 21.2 of the Judicial Power Act, the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963.

  33. To what extent might a third party challenge the recognition of an award?

    Section 41.1 of the SAA specifies that and award may be set aside if the applicant alleges and proves certain requisites. Nevertheless, the referred Section does does not specify what should be understood by the term “applicant”. Due to such ambiguity we have to attend to what Spanish case law has understood.

    In general terms, it has to be pointed out that Spanish case law is prone to consider that by “applicant” the legislator wanted to include both the parties to the arbitral proceedings as well as third parties to it. However, third parties will have to have a legitimate interest in the subject matter and will also have to prove that they hold a direct interest in the annulment action.

    As an example the ruling issued by Madrid’s High Court of Justice on the 28th of November 2016, denied a third party to the arbitral agreement to exercise and annulment action due to the fact that they didn’t sufficiently prove a legitimate interest in the subject matter.

  34. Have there been any significant developments with regard to third party funding recently?

    Third-party funding within arbitration is becoming increasingly common, with several specific cases where the arbitration associated costs were funded by non-parties to the arbitration.

    However, no legal framework regarding third-party funding in arbitration has been approved, neither court decisions have been issued. This creates uncertainties regarding the consequences of third-party funding in related matters, such as security for costs, awards of costs against third-party funders or valid assignment of claims to the funder.

  35. Is emergency arbitrator relief available? Is this frequently used?

    Since 2011, many Spanish institutions have adopted within their Rules the figure of the emergency arbitrator to decide on urgent matters before the arbitration tribunal is constituted.

    Certain Spanish arbitral institutions have regulated the emergency arbitrator relief, more precisely: (i) the CIMA (Madrid’s Civil and Commercial Court); and (ii) Madrid’s Arbitration Court. As to the first Court mentioned, its Rules provide, under Annex 1, for an emergency arbitration since 2014. As to the second Court referred, its Rules provide for an emergency arbitration under article 37 and Annex 2.

  36. Are there arbitral laws or arbitration institutional rules providing for simplified or expedited procedures for claims under a certain value? Are they often used?

    The SAA does not provide for fast track procedures for claims under a certain value. Nevertheless, certain arbitral institutions rules do provide for this type of procedures. As an example, we may refer to the Rules of the Spanish Court of Arbitration, the Rules of the Madrid Court of Arbitration and the Rules of the Catalan Arbitration Association.

    Section 35 of the Rules of the Spanish Court of Arbitration establishes that the summary procedure shall apply to all processes in which the total cost of the procedure (including the counterclaim) is less than 300,000 euros.

    Additionally, Section 51 of the Madrid Court of Arbitration’s Regulation determines that the fast track procedure shall be applied, by decision of the Court, in all cases in which the total amount of the proceedings (including the counterclaim, if applicable) does not exceed 100,000 euros, provided there are no circumstances which, in the judgment of the Court, make it advisable to use the ordinary procedure. The decision to conduct an arbitration case using the fast track procedure shall be final.

    On the 28th January 2014, The Governing Board of the Catalan Arbitration Association (Associació Catalana per a l’Arbitratge) unanimously approved the new Rules of Abbreviated Procedure. This procedure shall be used to process claims worth less than 30,000 euros, unless the parties expressly agree otherwise. Similarly, at the request of both parties or ex oficio by the institution and provided there is no opposition from any of them, claims for higher amounts may be processed by this method.

  37. Have measures been taken by arbitral institutions to promote transparency in arbitration?

    The Spanish Arbitration Club created the so called “Arbitral Code on Good Practices” (Código de buenas practices arbitrales) which is aimed at arbitral institutions. The referred code pretends to gather some ethical and moral principles which arbitral institutions may take into account.

    Arbitral institutions will have to release the information about their by-laws and main financing sources. They will also have to inform about the proceedings through which its management body exercises management faculties.

    Additionally, in case the arbitral institution holds a list of arbitrators, it should disclose the criteria used in order to select arbitrators and the established proceedings in order to become a member of such list.

    Finally, the Arbitral Code on Good Practices also establishes that arbitral institutions have the obligation to publish both its institutional fees and the arbitrator’s fees, together with other costs which may be related to the arbitration proceeding.

  38. Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted? If so, how?

    Diversity is not actively promoted in the SAA. However, different arbitral institutions are making efforts to achieve it. For example, the CIMA has provided a list of “young arbitrators” in its web page.

  39. Have there been any developments regarding mediation?

    The approval of a legal text which regulated mediation in Spain took place not so long ago.

    Directive 52/2008 on mediation in civil and commercial matters was transposed in Spain by the Law 5/2012, of July 6th, of Mediation in Civil and Commercial Matters. Such Act is applicable to mediation in civil or commercial matters, including cross-border disputes, as long as these do not affect rights and obligations of which the parties may not dispose by virtue of the applicable laws. In the absence of specific or tacit submission to this Act, it shall be applicable when at least one of the parties resides in Spain and the mediation is conducted within the Spanish territory.

  40. Have there been any recent court decisions considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?

    The decisions issued by Spanish courts on the exequatur and enforcement of foreign awards acknowledge the formal character of these proceedings and apply restrictively the grounds for refusal as stipulated in Section V of the New York Convention. In most scenarios, the parties try to allege the infringement of Spanish public policy in with the intention of setting aside an award that has been enforced in another jurisdiction. There is an existing controversy regarding the concept of public policy, but it is generally acknowledged that it has an exceptional character.

    After the entry into force of Law 11/2011, 20th May 2011, which amended the SAA, the competent courts for the recognition of foreign arbitral awards are the Civil and Criminal Sections of the Spanish High Courts of Justice of the region where the party whose recognition is requested has its place of business or residence.

    Since then, the majority of the High Courts of Justice have not set aside an award which has been enforced in another jurisdiction. On the contrary, High Courts of Justice are very keen to grant the exequatur of a foreign arbitral award.