The Spanish government’s enactment in 2003 of arbitration legislation based on the UNCITRAL Model law, Law 60/2003 of 23 December (the “Arbitration Act” or the “Act”), presented a milestone in the development of domestic and international arbitration in Spain. Since the enactment of the Arbitration Act, and in particular over the last five years culminating in the most recent amendments to the Act in 2011, there has been a continued and demonstrated willingness by the Spanish legislature, judiciary, arbitral institutions and arbitration community to bring Spain into line with international arbitration laws, standards and procedures
Despite the growth of international arbitration in Spain, most arbitration remains domestic and is administered by one of the key Spanish arbitration institutions. Contract and construction disputes are the most common types of dispute submitted for arbitration. In addition, the Arbitration Act provides significant flexibility with respect to international arbitrations and subjects the courts to a general overriding principle of non-intervention. This article briefly discusses the nature and extent of intervention of Spanish courts in the arbitral process pursuant to the Arbitration Act and highlights a few examples.
The role of courts: balancing non-interventionist principles
The scope of application of the Arbitration Act is defined in Article 1. The Act will apply to arbitrations seated within the Spanish territory, whether domestic or international, without prejudice to the provisions of any treaties to which Spain is a party or special laws containing provisions on arbitration. Articles 7 and 8 of the Arbitration Act consider intervention by the Spanish courts in arbitral matters. Article 7 provides an overriding principle of minimum intervention: no court shall intervene in cases that are governed by the Arbitration Act, except where the Act specifically states to the contrary.
Where can the courts intervene?
Article 8, which was amended in 2011, outlines the instances in which the courts may intervene and also defines the competent courts in any given circumstance. Under Article 8, actions to set aside the arbitral awards and the exequatur of foreign awards are now decided by the civil division of the high courts of each of the autonomous regions of Spain (Salas de lo Civil de los Tribunales Superiores de Justicia de las Comunidades Autónomas). Previously, these issues were decided by the courts of first instance (Juzgados de Primera Instancia), the provincial courts of appeal (Audencia Provincial), or the Provincial Court of Madrid. This change in the Arbitration Act has provided greater specialisation for the competent courts, relieved the workload of the courts of first instance, ensured greater consistency in the application of arbitration law and increased legal certainty for parties operating within the Spanish jurisdiction.
Other matters, however, such as the court’s assistance in obtaining evidence and the adoption of interim measures, remain the jurisdiction of the courts of first instance. Although not discussed in this Article, the enforcement of awards also remains within the jurisdiction of the courts of first instance.
How evidence is dealt with
Pursuant to Article 33 of the Arbitration Act, the arbitral tribunal or the parties may request judicial assistance for the production of evidence. The court may provide this assistance in one of two ways: by demanding the production of the requested evidence before the court (if so requested by the parties); or through the adoption of necessary measures to compel the production of the evidence before the arbitral tribunal. The competent court is the court of first instance of the seat of the arbitration or the place where the taking of the evidence will occur. With respect to the order of such production of evidence, the court will do so in accordance with several articles of the Civil Procedure Act (Law 1/2000 of 7 January 2000 of Civil Procedure) which provide, amongst other things, that the evidence be necessary, relevant and legally obtainable. Other articles of the Civil Procedure Act also apply to the use and admissibility of evidence in arbitral proceedings, the power of the court to compel the production of evidence, and the court’s ability to sanction parties that do not obey the court’s order. These articles outline the nature and form of evidence that can be requested by the parties and granted by the court, as well as the procedure for the presentation and consideration of such evidence.
Getting interim relief
Similarly, Article 8(3) of the Arbitration Act, in accordance with Article 724 of the Civil Procedure Act, provides that the competent court for the request of interim measures is the competent court of the place where the award is to be executed or, failing that, the place where the measures should take effect. In requesting the interim relief, pursuant to Article 728 of the Civil Procedure Act, the requesting party must demonstrate the following before the court: (i) a prima facie case (fumus boni iuris); (ii) the adverse consequences that would arise if the court were to reject the application for the relief sought (periculum in mora); and (iii) proportionality between the measure sought and the right to be protected. In granting the relief, the court may order the requesting party to provide appropriate security as compensation for any possible detriment which may be caused to the other party by the granting of the relief. When requesting interim relief prior to the commencement of arbitration proceedings, a party must demonstrate that it is indeed a party to an arbitration agreement and explain why the measure should be adopted (Article 722 Civil Procedure Act).
Article 726 of the Civil Procedure Act establishes that the competent court may grant any form of interim relief provided that it complies with certain general conditions as outlined in the same article (thus giving a party considerable flexibility to seek relief tailored to its needs) provided that it does not breach Spanish public policy or any mandatory laws. Article 727 of the Civil Procedure Act provides specific examples of interim measures that may be sought. Court-ordered interim measures will remain in force after the arbitral tribunal’s constitution (Article 724 Civil Procedure Act).
Respecting the arbitral jurisdiction
As the examples highlighted above demonstrate, Spanish courts, like those in other jurisdictions, must balance their interventions in the arbitral process. The courts have tended to respect the general principle of non-intervention set forth in the Arbitration Act. Indeed, the attitude of the Spanish judiciary towards arbitration has also developed considerably, with judges continuing to demonstrate greater confidence in the international regime and a willingness to respect the arbitral jurisdiction.
David Arias is a partner at Spanish law firm Perez-Llorca and specializes in arbitration
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