Spain - Baker & McKenzie International Arbitration Yearbook: 2010-2011

Victor Mercedes is Partner in Baker McKenzie’s Barcelona office and co-heads its litigation department. His experience includes domestic and international litigation and arbitration, insolvency and administrative proceedings, law and economic crimes.

José Ramon is a Partner in Baker & McKenzie’s Madrid office. He has extensive experience in civil and commercial litigation and arbitration. He is mainly involved in unfair competition proceedings, intellectual property, corporate law, contracting, software, construction law and arbitration.

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Originally from Baker & McKenzie International Arbitration Yearbook 2010-2011

A. LEGISLATION, TRENDS AND TENDENCIES

A.1 Setting the Reform Agenda of Spanish Arbitration Law

A bill to reform Spanish arbitration law (Arbitration Act 60/2003 of 23 December) in various significant respects is expected to come into effect in the first quarter of 2011. The proposed law is expansive, so that only the bill’s more controversial aspects are discussed here, including those amendments that are particularly relevant to commercial arbitration.

The pending bill is only the latest in several iterations of Spain’s arbitration law since it appeared in its original form almost six decades ago. Spain’s first law on arbitration, the Act of 22 December 1953, was informally known as the “anti-arbitration act.” Although considerable progress was made in the subsequent Act of 5 December 1988, that version too was soon found to be inadequate, particularly in relation to international arbitration. Not until the current law, Act 60/2003, which was based on the UNCITRAL Model Law, did arbitration begin to receive considerable recognition in Spain. This law applied antiformalist criteria, expressly recognizing the existence of international arbitration and eliminating the distinction between domestic and international arbitration. [It was a considerable improvement to the prior law, and had the effect of putting Spain on the map of international arbitration.]

Table of Contents:

A. Legislation, Trends and Tendencies A.1 Setting the Reform Agenda of Spanish Arbitration Law A.2 Procedural Aspects of the Reform A.3 “Ex Aequo et Bono” Arbitration A.4 Suitability of Arbitrators A.5 Challenging of Corporate Resolutions A.6 Insolvency Aspects in the Reform B. Cases B.1 Relevance of the Unequivocal Will of the Parties to Submit Their Disputes to Arbitration over the Terms Inserted in the Agreement B.2 Judicial Prima Facie Review B.3 Arbitration Clauses and Arbimanou Clauses and Adhesion Contract (“Contratos de Adhesion”) B.3.1 The arbitration clause incorporated into an adhesion contract is null and void when one of the parties is a consumer B.3.2 The arbitration clause incorporated into an adhesion agreement is not null and void if the parties are not consumers B.4 Interim Relief B.5 Public Policy B.6 Domain Names, Bills of Exchange, Debt-Enforcement Actions and Matters Involving Leases B.7 Arbitration and Consumer-Protection Legislation B.8 Service of Notice and Refusal to Accept Service B.9 Flexibility and Oral Nature of Arbitral and Special Proceedings with Reference to “Ex Aequo et Bono” Arbitration B.10 “Ex Aequo et Bono” Arbitration: Impartiality of the Arbitrators, the Demarcation of the Subject of the Proceedings, and the Scope of the Award B.11 Relevance of the Time Limit for Making the Award B.12 Violation of Public Policy Where an Award Is Rendered by Default B.13 Liability of the Arbitrators, in Particular in “Ex Aequo et Bono” Arbitration C. Insolvency Issues in Arbitration