The practice of arbitration is changing in Spain.

1.- International Arbitration. The law encourages international arbitration which is of great practical importance. Spanish lawyers ought to know that practice of the international arbitral process is very different in Spain. Our procedure stems from a Roman-French base and the international one is more similar to an Anglo-Saxon base. This means, for example, that in much international arbitration, both parties can demand production of documents, a cross-examination of witnesses can be made and the whole procedure can be much more oral than the Spanish tradition.

Arbitration agreement and gavel on a desk.

2.- The Primacy of Arbitration Law

If the parties do not specify to the contrary, arbitration is by law. That is to say, that the arbitrator should be bound by the law and agree to the award.

3.- Greater Flexibility

Arbitration in Spain has always been more flexible than the judicial procedure. But despite this, in practice, lawyers (and arbitrators) usually refer to the Civil Procedure Code. Now, our Arbitration Law has made the system even more flexible.

For example, it allows arbitrators to defer procedure. On the other hand, it is no longer necessary to formalize the arbitral award with a notary. It also allows communication between the parties and the arbitrator to be made using new technology.

4.- Minimum Judicial Intervention

Spanish Arbitration Law encourages co-operation between judges and arbitrators at the same time giving the former greater ability to act.

For example, the Civil Procedure Code allowed judges to adopt precautionary measures on the basis of announcing an arbitral procedure, but the judges were remiss in granting them. Now, Spanish Arbitration Law allows arbitrators to directly adopt these measures without affecting the fact that the judges can continue to adopt the precautionary measures that they ask for.


5.- Function of Provincial Courts

The Courts continue to be the main authority to resolve appeals against awards.

6.- Impact of Insolvency on Arbitration

Insolvency Law, on the other hand, finds difficulty with arbitration in a certain way. It establishes that the clauses of a contract referred to arbitration are suspended during Insolvency: only the Judge himself can restore matters, with the exception of any arbitration already started.

7.- Arbitration and Public Law

The traditional concept of arbitration appeared to exclude ‘Public Law’ matters, for example, non-contractual damages. We believe that this is not necessarily the case.

For example, the Spanish Brand Law allows arbitration between parties on the registration of incompatible brands. Arbitration is also generalized when it comes to consumers small claims. In the same way, WIPO arbitrators resolve disputes on domain names.

We believe that many other matters could be submitted to this procedure. Both parties could settle their differences by naming an ad hoc arbitrator or referring to an arbitral institution. We believe that matters like Unfair Competition, Intellectual Property, Patents or Brands could be resolved through arbitration in Spain.

As a final consideration, please note that Spanish Arbitration Law leaves a very wide margin of maneuverability for the parties in fixing the arbitral process. This can create a practical inconvenience: the procedure can go on for too long. In some ways, it should be regulated.

Santiago Nadal