In Spain, a wide culture of arbitration doesn’t exist, a method which has demonstrated its effectiveness in our neighbouring countries and which contributes to decongesting traditional justice in order to speed up conflict resolution. The work which prominent institutions like the Barcelona Arbitral Tribunal (TAB) carries out puts us on the right path to implement this procedure.

SNAbogados has wide experience in this type of intervention where they have assumed the role of arbitrator as well as lawyer representing parties and, in many cases, advises resorting to this method to settle disputes. Basically, at least in Spain, their activity has been focused within the realms of Industrial and Intellectual Property, New Technologies, Unfair Competition, Distribution and Franchising. It is not all advantages, so we think it is opportune is to detail the main areas of concern as follows:


Precautionary Measures

Traditionally precautionary measures are not set in arbitration cases. Only on rare occasions are they allowed partly due to the fact that the law didn’t foresee it and partly because on many occasions the award was obtained before any interim protection.

Still, today, there are few arbitral courts who are substantively capable of processing and implementing this type of measure, while the Civil Procedure Code allows their request before ordinary courts so long as the start of arbitral proceeding can be proved.

Territorial Competence

An added problem to the question of precautionary measures is that of territorial competence, because while the law establishes the tribunal for the place where the award has to be implemented as competent or, at least, the judge for this place where these measures must be applied, the fact is that for this type of proceedings, they must be applied in different places which usually causes problems of declinations. This premise is especially so in cases of conflict of an international scope and consequently, the parties are forced to resort to a complex court network which is precisely what they wanted to avoid by resorting to the method of arbitration.

The Proceedings

One of the main pitfalls, once the process of arbitration has started, is the matter of proceedings. In Spain, lawyers usually bear in mind the proceedings established in the Civil Procedure Code, but this doesn’t necessarily apply in the case of arbitration, so therefore it is easy to find that the arbitrator, at the request of the other party, establishes a different procedure, making the defence difficult for the lawyer in question. In international arbitrations this problem is exacerbated as the Anglo Saxon tradition, in procedural matters, is completely different to ours. This point can, however, be made into an arbitrator’s advantage since it allows the parties to agree before the proceedings which is convenient for them both.


The approach to evidence can also be problematic in cases of international arbitration. To give an example: in the Anglo Saxon system either one of the parties can ask for presentation of documents from their opponent much more easily than in our country. There is no doubt that this can make the defence strategy difficult. The treatment of witnesses who can be cross examined is also different, removing and subjecting them to a type of test which professionals in this country are not used to.

Implementation of the Award

Here is where we find the Achilles heel of the whole arbitration system. While obtaining the award is ostensibly quicker than the judicial sentence, in the case of it not being fulfilled, we end up by resorting to ordinary courts who have the power to implement it. In any case, the pact system generally implies that the parties can hardly show themselves to be belligerent once they have reached an agreement, which, to a greater or less extent, satisfies both of them.

To finish off the list of questions to take into account, it is fair to point out some of the undeniable advantages of arbitration: privacy, speed, flexibility, possibility that the arbitrator could be a specialist in the field of law in question. Ultimately, the professionals at SNAbogados are of the opinion that the passing of time will help to strengthen arbitration as a very convenient alternative for solving conflicts.

Santiago Nadal