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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.