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Commercial Arbitration

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Spain

Alfonso Iglesia, Alberto Fortún and Iñigo Quintana
Cuatrecasas

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  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Yes, Spain ratified the New York Convention on 12 May 1977, which entered into force in Spain on 10 August 1977. Spain made no reservations or declarations. Hence, Spain applies the New York Convention to the enforcement of arbitral awards made in non-member countries. Spain does not distinguish between whether the dispute arises from a contractual relationship, or whether it is civil or commercial under Spanish legal principles.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Spain is also a party to the Geneva Convention of 1961 on International Commercial Arbitration, which entered into force in Spain on 10 August 1975.

      Spain has entered into bilateral treaties with Switzerland (1896), France (1969) Italy (1973), Czechoslovakia (1987) (which currently applies to successor states, the Czech Republic and Slovakia), Uruguay (1987), Brazil (1989), Mexico (1989), China (1992), Bulgaria (1993) and Morocco (1997), which contain provisions on the recognition and enforcement of foreign arbitral awards. The rules on recognition and enforcement in these treaties are not drafted along the lines of the main international conventions or model laws relating to foreign arbitral awards because the primary purpose of those bilateral treaties is to regulate the enforcement of foreign judicial decisions.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. The Spanish Arbitration Act 2003, amended in 2011, was drafted following the UNCITRAL Model Law. It applies to all national and international arbitrations with Spain as the venue of arbitration (section 1.1, Arbitration Act). Certain provisions of the Spanish Arbitration Act 2003 apply even when the venue is set abroad.

      However, some differences between the Arbitration Act and the UNCITRAL Model Law are worth noting:

      • under the Arbitration Act, a dispute is arbitrable if the parties are free to contract (section 2.1, Arbitration Act);
      • Spanish law does not allow a state in an international arbitration to rely on principles of domestic law to avoid enforceability of the arbitration agreement (section 2.2, Arbitration Act);
      • Spain uses the impact on the interests of international trade as a qualifying criterion for arbitration to be considered international, in addition to section 1(3) and (4) of the UNCITRAL Model Law;
      • Spanish law goes beyond the UNCITRAL Model Law in favour of the validity and the arbitrability of the arbitration agreement. It states that it will be valid and arbitrable provided it is so under either the law to which the parties have submitted to govern the arbitration agreement, the law governing the merits of the dispute or Spanish law;
      • the default rule in Spain is one arbitrator (section 12M, Arbitration Act), if the arbitration agreement does not fix the number of arbitrators;
      • under Spanish law, the arbitrator’s liability can be established for wilful misconduct, bad faith or gross negligence (section 21, Arbitration Act), and
      • section 24.2 of the Arbitration Act states that arbitration is confidential unless otherwise agreed.
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. When the international arbitration is not subject to ICC Rules, there are four arbitral institutions based in Spain that, in our experience, administer most international commercial arbitration cases: the Court of Arbitration of the Madrid Chamber of Commerce; the Spanish Court of Arbitration, also based in Madrid; the Civil and Commercial Court of Arbitration; and the Arbitration Court of Barcelona. These arbitral institutions all act as appointing authorities.

      The CEA (Club Español del Arbitraje) is an arbitral body, which, although it does not administer cases, has acquired a well-deserved reputation. It has 800 members located in 37 jurisdictions worldwide through 24 international chapters.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes. ICC arbitration is frequently used in international transactions where the chosen seat of arbitration is Madrid. London Court of International Arbitration or International Centre for Dispute Resolution arbitration in Spain is rare. There is no limitation for arbitrators or counsel.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. Spain’s regional High Courts of Justice have exclusive jurisdiction over set-aside actions against arbitral awards rendered in Spain and can render any decisions related to recognition and enforcement of foreign arbitral awards. They can also enforce arbitration agreements and appoint arbitrators. Since acquiring these powers, the arbitration community has confirmed the significant degree of expertise in international commercial arbitration acquired by the judges in the High Courts of Justice. In November 2010, the judiciary created a specialised court of first instance in Madrid for arbitrations taking place in Madrid, called the Court of First Instance 101.

      Since the enactment of the 2003 Spanish Arbitration Act, the courts have shown a solid pro-arbitration approach. Actions to set aside rarely succeed and awards are generally recognised and enforced.

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. The formal requirements imposed on arbitration agreements under article 9 of the Arbitration Act follow article 7 of the UNCITRAL Model Law. The arbitration agreement must be in writing, in a document signed by the parties or contained in an exchange of communications submitted via telex, facsimile or any other telecommunications method. If the arbitration agreement is incorporated in a standard contract, the rules of incorporation of the arbitration agreement are the same as those of standard forms. The requirement of a written instrument is met if the agreement is contained in a digital or electronic source that allows retrieval. The parties’ signatures are required.

      The arbitration agreement can be contained in a separate agreement to arbitrate or in the clause of a contract. The arbitration agreement must show the parties’ consent to arbitrate disputes that have arisen or that may arise in the future and refer to a defined legal relationship, whether contractual or non-contractual.

      The Arbitration Act contains a conflict of laws provision that applies in international settings. The arbitration agreement will be valid if the agreement is valid under the rules of law chosen by the parties to govern the arbitration agreement, the rules of law that apply to the merits of the dispute, or under Spanish law.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. In international arbitration, a dispute is arbitrable in Spain if it is arbitrable under the law chosen by the parties, the law governing the contract or Spanish law, which is the place of arbitration. It is, therefore, difficult to find a case in which a dispute is not arbitrable. The Spanish Arbitration Act excludes labour disputes from its scope.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. The Spanish Arbitration Act does not contain provisions on joinder or third-party notices. Unless the parties agree to institutional rules of arbitration that allow such joinder or third-party notice, the possibility is excluded.

      The Spanish courts’ pro-arbitration bias has caused a line of precedents in which non-signatory parties have been bound by an arbitration agreement, including the following:

      • a third party subrogated by law in the contractual rights and obligations of a party that signed a contract with an arbitration agreement;
      • a third party that becomes a legal successor by virtue of a company merger of a party that was bound by an arbitration agreement;
      • a third party that is a party to a different contract closely linked to the arbitration agreement; and
      • pursuant to corporate veil-piercing theories.
  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. The Arbitration Act does not provide a regulatory framework for consolidation of arbitral proceedings. However, most Spanish arbitral institutions have included specific rules in their regulations and arbitrators can handle the issue of consolidation following international practices.

  11. 11.

    Groups of companies
    Is the 'group of companies doctrine' recognised in your jurisdiction?

    1. No. There are cases where non-signatory parties may be joined to the proceedings by way of subrogation, succession or representation, but consent is always required and the joinder of non-signatories does not happen under the group of companies’ doctrine.

       

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Yes. The Arbitration Act expressly recognises the separability of the arbitration agreement. Hence, when a contract is declared null, it does not affect the validity of the arbitration agreement.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. Yes, the arbitrators have jurisdiction to decide their own jurisdiction. Consistently, as per article 22 of the Spanish Arbitration Act, arbitrators must be competent to resolve ‘any pleas with respect to the existence or validity of the arbitration agreement, or any others whose acceptance would prevent consideration of the merits of the case’. The courts compel the parties to go to arbitration if they find, prima facie, the existence of an arbitration agreement.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. No, there are no special issues to acknowledge in this case. There is nothing different from what any international arbitration practitioner would consider in any other jurisdiction. In practice, to avoid any misinterpretation or pathological drafting, it is advisable not to refer to the ordinary courts in the contract, or at least in the same dispute resolution clause.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. This is a difficult question to answer as there are no public statistics comparing ad hoc with institutional arbitration. In our firm’s experience, we believe that institutional arbitration is more common than ad hoc arbitration and, generally, we advise selecting administered arbitration. If ad hoc arbitration is agreed, the UNCITRAL Rules are generally incorporated. For disputes arising from older contracts, there may be clauses in which the parties refer to the Spanish Arbitration Act. But this is less common in international transactions.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. When drafting a multi-party arbitration agreement, it is common to mirror the ICC Rules. If the number of arbitrators is three or more, article 15 of the Arbitration Act provides that both the claimants and the respondents appoint their own co-arbitrator. However, if the claimants or the respondents are not able to reach an agreement on the appointment of their respective co-arbitrator, the court will appoint all the arbitrators. There is no other legal reference to multi-party arbitration. The Spanish arbitration courts have included multi-party and multi-contract provisions in their rules.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. Under the Spanish Arbitration Act, either a letter or any notification to the other party of the dispute and of its willingness to start arbitration is enough. In practice, however, the arbitration starts with a request for arbitration followed by the answer to the request of arbitration and the subsequent appointment of the arbitrators. Under the Spanish Arbitration Act there are no mandatory limitation periods, except for the rendering of the award, which is referred to below.

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. Article 34.2 of the Spanish Arbitration Act follows article 28 of the Uncitral Model Law, under which the arbitrators must resolve the dispute in accordance with the contract and the law chosen by the parties. If the parties have not agreed on the law applicable to the merits, the arbitrators will apply the law they consider appropriate, based not only on the contract, but also on relevant trade usages.

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. There is no limitation regarding the selection of the arbitrators. Although the parties can agree on the number of arbitrators, it must be an odd number. Also, if a person has acted as mediator, the default rule is that he or she will not be eligible to act as arbitrator. An arbitrator’s nationality does not affect his or her eligibility, but the parties are free to agree otherwise. If the arbitration is at law, one of the members of the arbitral tribunal must be a jurist (who may not be Spanish), but this is not a mandatory rule either.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Yes. Non-nationals can act as arbitrators in Spain. Other than those required for a non-national rendering service in Spain, there is no additional requirement or immigration condition that applies to arbitrators.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. The rules of any arbitration institution are considered incorporated by reference to the arbitration agreement. If the arbitration is institutional, the appointing authority will be designated in the rules. If the arbitration is not administered and the parties have not agreed on the appointing authority, the regional High Court of Justice acts as the appointing authority.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. No, they are not, but the standard of liability is very high. Arbitrators may only be liable if acting in bad faith, recklessness or mens rea. To act as an arbitrator in Spain, the arbitrator must have liability insurance. If the arbitrators do not have liability insurance, the arbitral institution is bound to take out liability insurance on the arbitrators’ behalf.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. Section 21.2 of the Arbitration Act provides for the arbitrators’ and the arbitral institution’s right to require provision of funds from the parties to cover their fees and expenses and any other costs arising from the proceedings. If there is no provision of funds, the arbitrators may suspend or terminate the arbitration proceedings. If only one party does not contribute with the provision of funds, the arbitrators will notify the other parties and give them the opportunity to complete the provision of funds before suspending or terminating the proceedings.

      Spanish arbitral institutions provide fundholding services and act as the depository of the parties’ funds. They also settle the arbitrators’ fees and expenses.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. Sections 17 and 18 of the Arbitration Act regulate the challenge of arbitrators, following the best international arbitration practices. Independence and impartiality are required throughout the proceedings. The arbitrators have a duty to disclose any circumstance that may cast doubts on their independence and impartiality.

      The parties can freely agree the challenge procedure. Unless the challenged arbitrator withdraws voluntarily or the other party agrees on his or her removal, the other co-arbitrators in the arbitral tribunal will decide the issue. If the challenge is not accepted, it can be used as a ground to challenge the award. In administered arbitration, it is usually the institution that takes responsibility for confirming or removing arbitrators based on lack of independence and impartiality.

      The IBA Guidelines on conflicts of interest are frequently followed in Spain, especially in international arbitration disputes. Courts and arbitrators also take into account the best practices guidelines published by the Club Español del Arbitraje. Some judgments and rulings from the High Courts of Justice refer explicitly to this ‘soft’ law.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. What main types of interim relief are available in international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

      Article 23 of the Arbitration Act vests arbitrators with the authority to grant interim protective measures, but such authority may be carved out by agreement between the parties. The type of measures that arbitrators may grant is very broad. The limit to the arbitrators’ authority would be based on the same grounds for annulment of arbitral awards.

      The authority vested by article 23 allows arbitrators to adopt interim protective measures, but it does not specify which interests should be protected by the measures or the type of measures allowed by the provision. Measures should be provisional in any event. Final orders would not be covered by article 23.

      Orders of advanced payment on account of a future arbitral award may not be considered a protective measure. Anti-suit injunctions are not provisional orders, and would, therefore, fall outside the authority vested by article 23.

      Interim orders relating to the protection of evidence would be more easily admitted.

      If Spain is the arbitration venue (and not if the place of arbitration is located abroad), any party could seek the assistance of Spanish courts for interim protective measures. 

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. Security for costs would be considered an interim measure that seeks to protect the fairness of the arbitration proceedings, rather than substantive rights fought in the arbitration. There is no clear court precedent on the matter but some authors think that, at least, an agreement-based authority should be admissible. If the arbitrators have not been vested with this authority by agreement, the position of Spanish Arbitration Law is unsettled. Security for costs based on the parties’ foreign nationality or domicile may encounter problems with the provisions against cautio iudicatum solvi found in several international treaties to which Spain is a party. Security for costs (on other grounds), generally, is intertwined with the rights of access to justice and due process and may encounter public policy objections according to the opinion of some practitioners. There is no settled position.

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. The principle of party autonomy governs and controls arbitration (section 25.1 of the Arbitration Act). There is no mandatory rule other than the respect for due process rights (ie, the right to be heard and the parties’ equal treatment and contradiction).

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. Where a party decides not to appear in the proceedings, the arbitral institution and the arbitrators will attempt to obtain sufficient evidence to prove that the defaulting party received due notice of the arbitration. If the respondent has been notified and decides not to participate, the arbitration will continue and the arbitrator will resolve the dispute based on the existing allegations and evidence. Where a party decides not to participate in the proceedings, this does not mean that the party has admitted the claim.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
    1. As stated in the preamble of the Spanish Arbitration Act, the maximum freedom and flexibility of the parties and of the arbitrator governs the evidence-taking stage. As long as the principles of equality and contradiction are respected, the Spanish legislator aims to distinguish international arbitration from domestic practices.

      In practice, witness statements and expert reports are usually produced and cross-examination in hearings is generally accepted as well. Documents production is limited.

      The IBA Rules are normally mentioned in the terms of reference. However, it is unusual to adopt the IBA Rules with binding force.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. If necessary, the arbitrators or a party, with the approval of the arbitrators, may seek assistance from the courts in taking evidence. This assistance may consist of taking evidence before the court or adopting specific measures enabling arbitrators to take specific evidence. In practice, the courts’ assistance is rarely requested. 

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. Regarding document production in international arbitration, arbitrators look to the IBA Rules on the Taking of Evidence. In domestic arbitration and court litigation, document production is limited to the request for documents from the parties to the dispute. It requires that the document requested be identified and its relevance justified. This practice is widespread in other jurisdictions, including Latin American countries, so it is more than a domestic practice; it is embedded in the Spanish due process system not to allow broad discovery. The client’s expectations respond to this culture as well.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. It is not mandatory to have a final hearing on the merits if by final hearing we understand a hearing where the parties plead their case before the arbitrators. In practice, it is more common to submit written post-hearing briefs than oral submissions. However, it is mandatory to respect the principle of contradiction.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
    1. Yes, the arbitrators and the parties have the freedom to select the place they consider most appropriate for conducting the procedure (eg, for meeting with witnesses, parties and experts).

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Unless the parties agree otherwise, the answer is positive in cases where there is more than one arbitrator. If no majority is reached, the chairman’s decision will prevail.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Arbitrators may grant declaratory relief as well as monetary compensation. They may also order a party to provide specific performance of a contract or to abstain from pursuing a certain course of action. They may also grant interest and awards on costs. Punitive damages are unknown in Spain and might be declared contrary to public policy.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. If more than one arbitrator is appointed, decisions may be adopted by a majority of the arbitral tribunal. If one of the arbitrators does not sign the award, that arbitrator must explain the reasons for not signing the award. The Arbitration Act establishes that arbitrators with a dissenting opinion may specify how they vote. It does not refer to dissenting opinions.

      However, in practice, this possibility is generally admitted, and some institutions have incorporated this possibility into their latest amendments to their regulations.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. Section 37 of the Arbitration Act establishes that, unless the parties agrees otherwise, the final award must be granted within six months from the date the respondent submits the first pleading. The arbitrators are entitled to extend this time limit for up to two months.

      The award must be in writing and signed by the majority of the arbitrators, or at least by the chairman. Following the Uncitral Model Law, an award is considered to be in writing when a record is made of its content and signatures and the award is accessible on electronic, optical or other media for subsequent reference.

      The award must state the date and the place of arbitration. Unless the parties agree otherwise, the award must state the arbitrators’ decisions on costs as well as the reasons for their decision.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. There is a default time limit of six months to render the award from the date the respondent submits its first pleading.

      In international arbitration, the parties have one month to request the correction of any computation, clerical, typographical or similar errors in the award, its interpretation or even its rectification in cases where the award was decided on questions not submitted to the arbitrators or on a matter not subject to arbitration. Within one month, the parties may also request a supplementary award in cases of infra petita where the arbitrators did not resolve one of the claims presented before them.

       

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. Yes. The Arbitration Act does not impose any criterion on the arbitrators: it does not require the arbitrators to apply the loser pays principle or limit it to cases where one of the parties acts in bad faith. In practice, costs are commonly imposed in proportion to the success of each party’s claims. Both the rules of the arbitral institutions and the arbitrators consider the parties’ behaviour and collaboration when deciding how to apportion the arbitration costs.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. Any party can add a petition for interest to a principal claim. However, claims for interest on arbitration costs are not envisaged under Spanish law; a party cannot seek interest on the amounts it may have spent on the arbitration.

      Interest rates are periodically published in the Official Bulletin and they normally apply to decisions rendered in Spain. A special law (Act 3/2004 of 29 December 2004) regulating interest rates on late payments may be applicable if Spanish law governs the merits.

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. No, the arbitral award is not subject to appeal by contesting the merits (fact and law) of the dispute settled by the arbitrator.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. Yes, an arbitral award may be set aside on limited grounds regulated in section 41 of the Arbitration Act, which reflect the UNCITRAL Model Law (section VIII of the Preamble). The grounds for setting aside an award are the following:

      • the arbitration agreement does not exist or is not valid;
      • the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
      • 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 a mandatory provision of the Arbitration Act or, failing such agreement, was not in accordance with such Act;
      • the arbitrators decided on questions not capable of settlement by arbitration; or
      • the award is in conflict with public policy.
  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. As stated, under Spanish law there is no right to appeal an arbitral award.

      Regarding the action to set aside an award, the Arbitration Act does not regulate the exclusion agreement. Based on article 6.2 of the Spanish Civil Code, the legal doctrine has argued that the exclusion agreement would go against the right of defence and, therefore, against public policy. Similarly, as stated by the Supreme Court in a Sentence of 10 March 1986, and the Constitutional Court in Sentence 176/1996, of 11 November 1996,the exclusion agreement would go against the fundamental right to effective legal protection recognised in article 24.1 of the Spanish Constitution.

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. Article 46.2 of the Arbitration Act stipulates that the exequatur of foreign awards is governed by the New York Convention, without prejudice to the provisions of other international conventions more favourable to the granting of the exequatur.

      As established in section X of the Preamble to the Arbitration Act, the scope of application of the New York Convention in Spain makes an internal regime for exequatur of foreign awards unnecessary.

      Therefore, the same controversy surrounding the interpretation of article V.1.e of the New York Convention might apply to Spain.

      The few judgments issued by Spanish courts have not granted the exequatur when the award was set aside by the courts of the seat of arbitration (decisions of the Court of Appeal of Madrid of 16 November 2009 and 22 December 2009). 

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. 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 article V of the New York Convention.

      There is a doctrinal controversy regarding the concept of public policy, but it is generally acknowledged that it has an exceptional character.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Article 2.2 denies the possibility of a state or a state entity opposing the prerogatives of its own law in order not to comply with obligations derived from the arbitral agreement.

      However, the Spanish Constitutional Court (TC 107/1992) has confirmed its immunity from enforcement and that, under article 21.2 of the Judicial Power Act, the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963, the premises and assets of diplomatic missions and consulates cannot be seized.

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. The confidentiality obligation under section 24.2 of the Arbitration Act binds both parties and arbitrators, unless otherwise agreed by the parties.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. Both parties and arbitrators are obliged to honour the confidentiality of the information in the arbitral procedure. This information can only be disclosed to comply with an order from the arbitrator or the courts.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. The Arbitration Act does not include an ethics code that binds arbitrators or counsel. The only two requirements are independence and impartiality. However, arbitrators and counsel admitted to any of the Spanish bars are bound by the professional code and ethical rules applicable to lawyers.

      Spanish practitioners practicing international arbitration are also familiar with the guidelines approved by the IBA and the Club Español de Arbitraje, which contain ethical rules.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. Spanish legislation does not establish any further involvement by the courts, other than assistance at the evidence-taking stage, neither with regard to procedural objections nor any other procedural issues. Article 5 of the UNCITRAL Model Law prohibits domestic court intervention in arbitration procedures (article 7 of the Arbitration Act), unless expressly permitted in the Arbitration Act.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?