ARBITRATION IN SPAIN - Dispute Resolution Journal - Vol. 55, No. 4
Twelve years after the enactment of a revolutionary Arbitration Act in Spain, the use of the procedure in that country is growing. In this article, Ramón Mullerat describes the ground-breaking features of the Arbitration Act of 1988, as well as the nuances of the arbitration procedure as practiced and utilized in Spain. The author is a practicing lawyer in Barcelona, Spain, and a professor at the Faculty of Law at the University of Barcelona. He is an honorary member of the Bar Council of England & Wales and a former president of the Council of the Bars and Law Societies of the European Community (CCBE). He would like to thank Matthew Verbin for his assistance in the preparation of this article.
Originally from Dispute Resolution Journal
Alternative dispute resolution and arbitration1 are gradually becoming popular in Spain.2 As in other jurisdictions, people and particularly business concerns in Spain are disillusioned by the complexity and delays associated with most formal procedures.
Following the lines of the Spanish Constitution (art. 38), arbitration allows for the freedom of choice of proceedings. This gives private persons the right to make free dispositions in their best interests, including the option of whether or not to resort to judicial proceedings to defend these interests.
Among the different theories of the nature of arbitration—contractual, jurisdictional, mixed—the Spanish arbitration system falls under the category of mixed theory because although arbitrators and judges share many similarities, the arbitration convention clearly shows the contractual nature of arbitration.3
There are a large number of institutions administering arbitration in Spain.4 Some of them specialize in a particular type of dispute (consumer, labor, maritime, etc.) Among those dealing with general commercial disputes are the Tribunal Arbitral de Barcelona, Corte de Arbitraje de Madrid, Sociedad Española de Arbitraje de Madrid and Corte Civil y Mercantil de Arbitraje de Madrid. The number of arbitration proceedings in Spain is still limited, but growing. For instance, arbitrations administered by the Tribunal Arbitral de Barcelona totaled 68 in 1997, 84 in 1998, and 84 in 1999.5
The Arbitration Act
According to the Spanish Arbitration Act of 1988 (the “Arbitration Act”), arbitration is the institution by “which natural or legal persons may submit, upon prior agreement, to the decision of one or several arbitrators, such litigious issues arising or which may arise in matters of which they may make free disposition pursuant to law” (art. l).6
Thus, only topics in which the parties have free disposition pursuant to law can be the subject matter of arbitration. Issues that may not be arbitrated are those where a final judicial resolution has been rendered, matters joined with others of which the parties may not make free disposition, and issues in which the attorney general must intervene in the representation of those who are unable to act on their behalf. Labor arbitrations are also excluded (art. 2).