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National arbitration laws
What legislation applies to arbitration in your jurisdiction?
Arbitral proceedings in Spain are governed by the Arbitration Act (60/2003).
The act applies without prejudice to treaties expressly ratified by Spain or specific Spanish regulations containing provisions relating to arbitration (eg, IP and consumer protection laws).
Are there any mandatory laws?
All arbitral proceedings must follow the Arbitration Act.
New York Convention
Is your country a signatory to the New York Convention? If so, what is the date of entry into force?
Yes. Spain ratified the New York Convention on April 29 1977.
Are there any reservations to the general obligations of the convention?
No. Once ratified, the convention’s original text became part of the Spanish legal system.
Treaties and conventions
What other treaties and conventions in relation to arbitration is your jurisdiction party to?
The European Convention on International Commercial Arbitration of April 21 1961, which was ratified by Spain on March 5 1975.
Has your jurisdiction adopted the UNCITRAL Model Law?
The Arbitration Act follows the principles established by the UNCITRAL Model Law and contains certain amendments to promote arbitration in Spain, including the following:
- Further to a 2011 amendment to the Arbitration Act, arbitral institutions must now monitor:
- arbitrators’ capacity;
- the transparency of designations; and
- arbitrators’ independence throughout arbitral proceedings.
In addition, arbitral institutions and arbitrators must subscribe to professional liability insurance.
- Unless otherwise agreed by the parties, if a single arbitrator is appointed, he or she must be a jurist, except if the matter is to be decided ex aequo et bono (ie, according to what is right and good). In the case of a three-member panel, at least one arbitrator must be a jurist. The term ‘jurist’ is used instead of ‘practising lawyer’ (the term originally used in the Arbitration Act), to include academics and other legal professionals who are not practising lawyers. In addition, arbitrators must not have acted as mediators in the same dispute.
- The late issue of an arbitral award (ie, after the deadline has expired) 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 the parties cannot agree otherwise.
- The Arbitration Act allows arbitrators to state in the award whether they voted for or against the final decision.
- The parties may request that the arbitrator(s) amend the arbitral award if they have exceeded their jurisdiction, in addition to supplementing omitted petitions. This provision aims to prevent unnecessary actions to set aside awards.
Are there any impending plans to reform the arbitration laws in your jurisdiction?
There is a discussion regarding whether the partiality of the arbitration institution can serve as grounds for declaring an arbitral award null and void.
What are the validity requirements for an arbitration agreement?
Article 9.1 of the Arbitration Act states that an arbitration agreement may be a clause in a contract or a separate agreement. In both cases the agreement must 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.
According to Article 9.3 of the act, to be valid, an arbitration agreement should be:
- executed in writing; and
- contained in a document signed by the parties or in an exchange of letters, telegrams, telexes, faxes or any other means of communication which ensures that a record of the agreement is kept.
This requirement is fulfilled if the arbitration agreement is readily available and accessible for subsequent consultation.
Under Article 9.2 of the act, if an arbitration agreement is included in a standard contract, its validity and interpretation will be governed by the rules applicable to the contract.
With regard to international arbitration, Article 9.6 of the act specifically states that, to be valid, an arbitration agreement must meet the requirements set out in:
- the rules of law chosen by the parties to govern the agreement;
- the applicable substantive law; or
- Spanish law.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
The Spanish courts enforce arbitration agreements and adopt a pro-arbitration stance. Section 11.1 of the Arbitration Act prevents ordinary courts from settling any dispute submitted to arbitration if one of the parties to the agreement has initiated the corresponding arbitration process.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
While the Arbitration Act contains no specific provisions regarding the joinder of other actions, the rules of many institutions permit this. Customarily, the prerequisite is a link between all actions initiated during arbitration.
In addition, Spanish law does not afford arbitral tribunals the power to assume jurisdiction over individuals or entities which are not party to the arbitration agreement. However, according to some case law, arbitration agreements may bind non-signatories if they have a close and strong relationship with one of the signatories or have played a relevant role in the performance of the relevant contract ( so-called ‘tacit acceptance of the arbitration agreement’). This issue is analysed on a case-by-case basis, as Spain has no specific case law on the subject (a July 9 2007 Supreme Court decision was against the extension of arbitration clauses to non-signatories, while a May 26 2005 decision favoured such extension).
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?
Pursuant to Article 34 of the Arbitration Act, arbitral tribunals must decide disputes in accordance with the law or rules chosen by the parties. Any designation of law or a legal system is deemed to refer directly to the substantive laws of that respective state. In the absence of a relevant agreement between the parties, the arbitral tribunal may directly – without resorting to conflict of law rules – apply the law that it considers most appropriate. The arbitrators may make such determinations ex aequo et bono (ie, according to what is right and good) only if expressly authorised by the parties.
Regardless of the substantive law chosen by the parties, if the seat of arbitration is in Spain, mandatory laws affecting Spanish public order may not be infringed. Otherwise, any award may subsequently be declared null and void.
Are there any provisions on the separability of arbitration agreements?
In accordance with Article 22 of the Arbitration Act, arbitration agreements are considered independent from the contract in which they are included and arbitrators can adjudicate on their own jurisdiction. Thus, the principle of competence-competence is expressly recognised in Spain.
Further, arbitrators’ decisions on their jurisdiction may be challenged only by means of an application to set aside the final award or a separate award on jurisdiction.
Are multiparty agreements recognised?
The Arbitration Act does not address multiparty agreements. However, they are admitted by reference in Article 15.2 and case law, provided that all prerequisites in Article 9 are met.
Criteria for arbitrators
Are there any restrictions?
There are some limitations on who may serve as an arbitrator – for example, legal entities cannot serve as arbitrators, only individuals. Under Article 15.1 of the Arbitration Act, unless the parties agreed otherwise, a sole arbitrator must be a jurist; however, this is not required if the arbitrator must decide the dispute ex aequo et bono (ie, according to what is right and good). In a tribunal formed by three or more arbitrators, at least one arbitrator must be a jurist.
What can be stipulated about the tribunal in the agreement?
Under Article 15.2 of the Arbitration Act, the parties can agree on the process for appointing the arbitrators, provided that the principle of equal treatment is not infringed. In practice, most arbitration clauses contain provisions on the number of arbitrators, their nationality, language requirements and, in some cases, speciality and skill requirements.
Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics?
If the parties have not agreed to a specific number of arbitrators, the arbitration will be adjudicated by a single arbitrator, who will be appointed by the corresponding institution or competent court.
In a three-panel tribunal, each party will appoint one arbitrator and the party-appointed arbitrators will appoint the chair.
In the event of multiparty arbitration, each set of parties will appoint one arbitrator. If an agreement cannot be reached, the competent court will decide on the appointment.
Challenging the appointment of an arbitrator
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?
All arbitrators must be and remain impartial and independent throughout the arbitration process. Arbitrators cannot have any personal, professional or commercial relationship with any of the parties to the arbitration.
The appointment of an arbitrator can be challenged only if there are grounds to argue that he or she:
- is not impartial or independent; or
- does not meet the requirements set out by the parties.
In institutional arbitration, the process for challenging an appointment will follow the rules of the institution administering the arbitration.
If no institution is administering the arbitration, the parties are free to determine the process. If no process is agreed, the party challenging the appointment must do so within 15 days of the arbitrator’s acceptance or the date on which the grounds for challenge were known to that party.
The arbitrators will decide whether the challenge is valid.
How should an objection to jurisdiction be raised?
Jurisdictional objections must be raised in the first statement that is filed within the arbitration process (customarily in the response to the request for arbitration); otherwise, the jurisdiction may be considered fully accepted.
If an action is presented before the ordinary courts in relation to the subject of the arbitration, any jurisdictional objection must be raised within 10 days of the competent court being granted jurisdiction to decide the claim.
Replacement of an arbitrator
Why and how can an arbitrator be replaced?
Pursuant to Article 19 of the Arbitration Act, an arbitrator can be replaced if he or she is unable to perform his or her duties diligently.
The parties may agree on the process for replacing an arbitrator. If no process is agreed, a replacement arbitrator may be proposed and the competent court will determine his or her acceptability.
Powers and obligations
What powers and obligations do arbitrators have?
The most relevant powers of arbitrators under the Arbitration Act are as follows:
- They may withdraw from their appointment when they cannot properly exercise their powers and duties.
- They may decide about their own competence.
- They may adopt interim measures and injunctions.
- They can conduct the arbitral process and decide on hearings, means of evidence and conclusions.
- They may appoint experts (unless expressly agreed to the contrary by the parties).
The most relevant duties of arbitrators under the Arbitration Act are as follows:
- They must be and remain independent and impartial throughout the arbitration process.
- They must respect the principle of due process and afford equal treatment to all of the parties.
- They must keep confidential all information obtained in their role as arbitrators.
- They must issue awards within the established timeframes and explain the rationale behind their decisions.
Liability of arbitrators
Are arbitrators immune from liability?
No. Article 21 of the Arbitration Act establishes that arbitrators are liable for damages caused by wilful misconduct or gross negligence. Arbitrators must have a professional insurance policy covering potential liabilities.
Communicating with the tribunal
How do the parties communicate with the tribunal?
The parties are free to agree to how they will communicate with the tribunal. In the absence of an agreement, the tribunal will decide.
Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?
Tribunals need not provide unanimous decisions; a majority will suffice (unless otherwise agreed by the parties). If there is no majority, the chair will decide (unless otherwise agreed by the parties). The implications of this rule is that the process for issuing an award must strictly follow Article 37 of the Arbitration Act; otherwise, the award may be subject to challenges.
Are there any disputes incapable of being referred to arbitration?
The Arbitration Act is flexible with respect to arbitration, as it specifically states that a dispute may be arbitrated not only when the requirements under Spanish law are met, but also when the requirements of the rules of law chosen by the parties or the rules of law applicable to the merits of the case are met. Article 2 of the Arbitration Act provides that only disputes relating to matters within the free disposition of the parties are arbitrable. Nonetheless, there is no definition of which matters are within the ‘free disposition of the parties’. However, it is clear that disputes regarding criminal matters and parental issues, for instance, are outside the scope of arbitration. In addition, the subject matter of the particular legal relationship should be considered; for example, as Spanish law is protective of consumers and, in some circumstances, will find arbitration clauses entered into by a consumer void.
Can the arbitrability of a dispute be challenged?
Jurisdiction and 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?
Article 22 of the Arbitration Act clearly states that arbitration agreements will be considered independent from the contract in which they are included and arbitrators can adjudicate on their own jurisdiction. Thus, the principle of competence-competence is expressly recognised in Spain.
Further, arbitrators’ decisions on their jurisdiction may be challenged only by means of an application to set aside the final award or separate award on jurisdiction.
Arbitrators’ decisions can be challenged through a process to set aside an award.
Starting an arbitration proceeding
What is needed to commence arbitration?
In the case of institutional arbitration, the rules of the institution so appointed must be followed, which will customarily require that a request for arbitration be filed.
If an institution has not been appointed, the process may be agreed by the parties, which will customarily also require that a request for arbitration be filed.
Are there any limitation periods for the commencement of arbitration?
No laws or rules prescribe limitation periods for the commencement of arbitrations in Spain, except for those specifically stated in the applicable substantive law.
Are there any procedural rules that arbitrators must follow?
The parties are free to set out the procedural rules in their arbitration agreement directly or by reference to arbitration rules issued by any relevant institution. However, arbitrators must respect certain general principles – for example, due process (including in relation to service and equal treatment within arbitration).
Are dissenting opinions permitted under the law of your jurisdiction?
Yes – under Article 37.3 of the Arbitration Act.
Can local courts intervene in proceedings?
Local courts cannot act in or adjudicate on a dispute that is subject to arbitration. Pursuant to Article 8 of the Arbitration Act, local courts may act in support of arbitration only in relation to:
- the appointment and withdrawal of arbitrators;
- the gathering of evidence;
- the adoption of interim measures;
- the enforcement of national and international awards; and
- the adjudication of appeals to set aside awards.
Can the local courts assist in choosing arbitrators?
Pursuant to Article 15.3 of the Arbitration Act, if an express agreement fails or is absent, any party may apply to the competent ordinary court to appoint the arbitrators or adopt the necessary measures for this purpose, if appropriate.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
As Article 11.1 of the Arbitration Act clearly establishes that the parties will be bound by the arbitration clause, if a respondent fails to participate in arbitration, the process will continue and the arbitrators will issue the award nonetheless. Arbitrators cannot issue subpoenas to third parties.
In what instances can third parties be bound by an arbitration agreement or award?
Third parties are bound by arbitration only if they have admitted that the arbitration clause applies to them and have actively participated in the arbitration.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
The default language will be the official language of the seat of arbitration.
The default location will be set by the arbitrators, given the circumstances of the case and the convenience of the parties.
How is evidence obtained by the tribunal?
The applicable rules of evidence will be chosen by the parties. If the arbitration is administrated by a particular institution, the rules of that institution will govern the evidence within the arbitration process. In the case of ad hoc arbitration, where the parties have not agreed on rules on evidence (eg, the International Bar Association rules), 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.
What kinds of evidence are acceptable?
Documents and electronic evidence, witness statements, expert reports and inspections by the tribunal are all acceptable.
The Arbitration Act contains no provisions on the production of written or oral testimony. In this regard, procedures established by the International Bar Association rules on the taking of evidence have become standard practice in Spain. Cross-examination of witnesses and witness conferencing are both allowed in Spain. The former is common, whereas the latter is still rare.
Is confidentiality ensured?
Pursuant to Article 24(2) of the Arbitration Act, arbitrators, parties and arbitral institutions must keep confidential information obtained in the course of arbitral proceedings. Although this provision seems to apply only to substantive information obtained during the proceedings, it also applies to any documents and information provided during arbitration (eg, submissions and awards).
Can information in arbitral proceedings be disclosed in subsequent proceedings?
The confidentiality provisions apply in relation to third parties, but do not apply to competent Spanish courts in relation to matters brought before them by any of the parties to the arbitration.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Under Article 17.2 of the Arbitration Act, arbitrators must disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. An arbitrator must immediately disclose any such circumstances to the parties.
No specific rules govern counsel, other than those generally applicable to Spanish lawyers acting before the courts. Counsel must always comply with the rules applicable to proper general conduct, which mainly relate to the principle of good faith. These same rules apply to any foreign counsel acting in Spain within any arbitration process. No specific rules govern the conduct of Spanish counsel acting in arbitrations abroad; this matter should be addressed under the rules applicable at the seat of arbitration.
Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?
Article 37 of the Arbitration Act provides that, unless otherwise agreed by the parties, the award will establish the costs to be borne by each party.
The arbitral costs will include:
- the arbitrators’ fees and expenses;
- the fees and expenses of the parties’ defence or representatives (as appropriate);
- the cost of the service rendered by the arbitration institution (as appropriate); and
- all other expenses incurred during the arbitral proceedings (as appropriate).
If the parties have no agreement regarding costs, the arbitrators can decide on the distribution of costs. While costs usually follow the event, arbitrators may also decide in the award that one of the parties must compensate the other for costs and expenses incurred.
Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?
The Arbitration Act does not expressly address security for costs, although this is granted in some cases.
What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?
Article 37 of the Arbitration Act sets out the formal requirements that an award must fulfil in order to be valid:
- It must be executed in writing and signed by the arbitrators.
- It must be reasoned, unless dictated with the parties’ consent.
- It must specify the date and place of issue.
- It must decide on costs and expenses in relation to the arbitration, respecting any agreements between the parties in this regard.
- It must be duly served on all parties to the arbitration.
Awards need not be reviewed by any other body.
Timeframe for delivery
Are there any time limits on delivery of the award?
Unless otherwise agreed by the parties, the arbitrators must issue their award within six months of the date on which the response to the claim was filed. However, if the arbitrators exceed this time limit, the award is still valid, without prejudice to the arbitrators’ liability.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?
Spanish law does not provide for punitive damages. That said, if a contract makes provision for punitive damages, arbitrators may grant them if the conditions stipulated in the contract are met, carefully assessing their proportionality based on the principle of free will of the parties. However, the enforcement of these damages is complicated, as the award could be challenged based on various principles of public order.
Arbitrators may award interest. Under Spanish law, the parties may agree to apply compound interest.
What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?
Interim measures may be requested before the appropriate local court or the arbitral tribunal. All measures intended to secure the future enforcement of the award may be applied by any party to the arbitration, following Section 727 of the Civil Procedural Act.
Can interest be awarded?
At what rate?
Generally, the applicable interest rate will be agreed between the parties. If the parties have no agreement in this regard, the applicable interest rate will be the legal interest rate approved by the government each year. In the case of commercial receivables, the interest rate set out in Act 3/2004 may apply. This interest rate is equal to the interest rate applied by the European Central Bank to its most recent financing transactions, plus 7%.
Is the award final and binding?
Awards are final and binding and may be challenged only on the grounds set out in Article 41 of the Arbitration Act.
What if there are any mistakes?
Within 10 days of issue of the award, any of the parties may request the tribunal to correct mistakes. The tribunal may also correct any mistakes within 10 days of the date of the award.
Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
On what grounds can parties appeal an award?
Section 41 of the Arbitration Act sets out the grounds on which an award can be challenged, stating that an award may be set aside if the applicant can demonstrate that:
- the arbitration agreement does not exist or, if it does exist, is void;
- it was not notified about the appointment of the arbitrator or any order, or it was unable to exercise its rights;
- the arbitrators adjudicated on matters beyond the scope of their jurisdiction;
- the appointment of the arbitrators or the proceedings were in breach of the parties’ agreement, or – where no agreement exists or where such agreement is contrary to the Arbitration Act – the appointment or the proceedings were in breach of the Arbitration Act;
- the arbitrators decided on matters that are not arbitrable; or
- the award is contrary to public order.
What is the procedure for challenging awards?
Any challenge against an award must be filed within two months of the date on which the award was issued. Challenges must be filed before the superior court of justice of the seat of arbitration. The applicant must provide all supporting documentation and propose any relevant means of evidence. The court will serve the challenge on the other party, which has 20 business days to oppose the challenge and provide documentation and relevant means of evidence. A hearing may take place if requested by the parties or if any admitted means of evidence must be executed before the court. After the hearing, or where no hearing takes place, the court will issue its judgment, which is final and cannot be appealed.
What steps can be taken to enforce the award if there is a failure to comply?
The enforcement procedure varies depending on whether the award is domestic or foreign (an award issued outside Spain is considered a foreign award pursuant to Article 46 of the Arbitration Act).
Domestic awards may be enforced directly before the court of first instance of the place where the award was issued, following the procedure established in the Civil Procedure Act, which starts with an application filed by the party seeking to enforce the award.
Foreign awards are recognised pursuant to the New York Convention. Generally, the competent authority is the superior court of justice of the domicile or residence of the party against which recognition is sought or, on a subsidiary basis, of the place where the award will have effect.
Any enforcement petition must seek to comply fully with the decision set out in the award. The enforcement process will encompass any measures needed to grant full relief to the winning party.
Can awards be enforced in local courts?
Yes, as only local courts have competence to enforce awards.
How enforceable is the award internationally?
Any Spanish award must follow the New York Convention of 1958 to be enforced internationally.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Pursuant to Article 2.2 of the Arbitration Act, if the arbitration is international and one of the parties is a state, the state may not invoke a sovereign immunity defence to avoid the consequences of the arbitration agreement and, thus, of enforcement of any award issued thereunder.
Are there any other bases on which an award may be challenged, and if so, by what?
The grounds established under Article 41 of the Arbitration Act are numerus clausus (ie, a challenge may be based only on the causes established therein).
How enforceable are foreign arbitral awards in your jurisdiction?
Pursuant to the New York Convention, foreign awards are fully enforceable in Spain.
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
This differs on a case-by-case basis. Some local courts have enforced awards set aside by in the seat of arbitration on an independent application of the New York Convention, while other local courts have denied enforcement based on the fact that the award was set aside by in the seat of arbitration. The matter is thus still open for debate.
Rules and restrictions
Are there rules or restrictions on third-party funders?
Class-action or group arbitration
Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?
No specific provision contemplates class-action or group arbitration.
Are there any hot topics or trends emerging in arbitration in your jurisdiction?
There is some debate as to whether the partiality of the institution administering the arbitration could be grounds for declaring the arbitral award null and void.
Since 2011, many Spanish institutions have introduced the role of emergency arbitrator into their rules. Emergency arbitrators decide on urgent matters before the arbitration tribunal is constituted.