Spain - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Pilar Perales Viscasillas is Chair of Commercial Law at University Carlos III of Madrid (Spain), and formerly Chair of Commercial Law at University of La Rioja. Graduated from the Law School of the University Autónoma of Madrid (1991). Doctor in Law at the University Carlos III of Madrid (1996), with honours. Member of the Spanish Bar since 2000. Consultant on domestic and international commercial legal matters and has acted as arbitrator in international commercial matters. Of Counsel at Baker & McKenzie (Madrid). Prof. Perales Viscasillas has published several books in Spanish as well as many articles in Spanish and English. Visiting Scholar at UNCITRAL and at the Universities of Columbia, Arizona and Pace, where she also was Adjunct Professor of Law. Also Visiting Professor at Queensland University and Louisiana State University. Spanish Representative at UNCITRAL in the Working Group on International Commercial Arbitration. CLOUT National correspondant.Observer at UNIDROIT on the WG (3rd edition UNIDROIT Principles of International Commercial Contracts). Member of the International Arbitration Group of the London Court of International Arbitration (LCIA). Member of the International Academy of Commercial and Consumer Law (IACCL). Member of the CISG-AC (The International Sales Convention -Advisory Council). Associate Member to the General Commission for the Codification of Commercial Law in Spain. She is also Co-Director and co-editor of the CISG database: Spain and Latin America, and co-director of Moot Madrid.

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Originally from World Arbitration Reporter (WAR) - 2nd Edition

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I. INTRODUCTION: ARBITRATION IN SPAIN – HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration Although arbitration in Spain may be traced back to medieval times and to the first commercial codifications contained in the “Ordenanzas,” particularly the Bilbao Ordenanzas of 1737, historically, the most important sources for arbitration are the Commercial Code of 1829 and the procedural law of July 24, 1830, which set forth mandatory arbitration for corporate and other kinds of disputes, in addition to voluntary arbitration. However, by the end of the nineteenth century, arbitration had been overlooked by teh legislature since the Commercial Code of 1885 (the Code already in force) did not contain any provision dealing with arbitration.

Table of Contents:

I. INTRODUCTION: ARBITRATION IN SPAIN- HISTORY AND INFRASTRUCTURE A. History and Current Legislation on Arbitration 1. Historical evolution of law relating to arbitration 2. Current law a) Domestic arbitration law b) International arbitration law 3. Law reform projects 4. Confidentiality and publication of awards a) Privacy of proceedings b) Publication of awards B. Arbitration Infrastructure and Practice in Spain 1. Major arbitration institutions 2. Number of cases and other statistics 3. Development of arbitration compared with litigation II. CURRENT LAW AND PRACTICE A. Arbitration Agreement 1. Types of validity of agreement a) Clauses and submission agreements b) Minimum essential content c) Form requirements d) Incorporation by reference e) Interpretation 2. Enforcing arbitration agreements a) Declaratory actions in court b) Applications to compel or stay arbitration c) Anti-suit and other injunctions 3. Effects on third parties a) Extension of the agreement over third parties 4. Termination and breach B. Doctrine of Separability 1. Statutory provisions C. Jurisdiction 1. Which forum decides jurisdiction 2. Prima Facie determination 3. Competence-competence 4. Interaction of national courts and tribunals D. Arbitrability 1. Notion and functions of arbitrability 2. Applicable law 3. Subjective arbitrability a) Natural persons b) Legal persons c) States and state entities 4. Objective arbitrability a) Examples of restrictions to objective arbitrability at law b) Cases restricting objective arbitrability E. Arbitral Tribunal 1. Status and qualifications of arbitrators a) Number of arbitrators b) Legal status c) Qualifications and accreditation requirements d) Arbitrators’ rights and duties e) Relevant codes of ethics 2. Appointment of arbitrators a) Methods of appointment b) Appointing authority c) Resignation and its consequences 3. Challenge and removal a) Grounds for challenge b) Procedure for challenge c) Removal procedure 4. Arbitrator liability and immunity F. Conducting the Arbitration 1. Law governing procedure a) Determination of law and rules governing procedure b) Notion and role of seat of arbitration c) Methods for selection of seat absent party choice d) Mandatory rules for procedure 2. Conduct of arbitration a) Basic procedural principles b) Party autonomy and arbitrators’ power to determine procedure c) Style and characteristics of the oral hearing d) Documents only arbitrations e) Submissions and notifications f) Deadlines, and methods for their extension g) Legal representation h) Default proceedings 3. Taking of evidence a) Admissibility b) Burden of proof c) Standards of proof d) Evidentiary means in general e) Documentary evidence and privilege f) Production of documents g) Witnesses h) Tribunal-appointed experts i) Party-appointed experts 4. Interim measures of protection a) Jurisdiction for granting interim measures b) Availability of preliminary or ex parte orders c) Types of measures d) Form of measures e) Security for costs f) Enforcement mechanisms 5. Interaction between national courts and arbitration tribunals a) Court assistance before the arbitration begins b) Court assistance during the arbitration c) Court assistance after the arbitration 6. Multiparty, multi-action, and multi-contract arbitration 7. Law and rules of law applicable to the merits a) Determining the applicable law and rules b) Party autonomy c) Determination by arbitrators d) Non-national substantive rules, general principles of law and transnational rules e) Mandatory rules 8. Costs a) Arbitration costs b) Legal costs c) Security for costs G. Arbitration Award 1. Types of awards a) Partial award b) Final award c) Interim award d) Consent awards e) Default awards f) Awards and other decisions of the tribunal 2. Form requirements a) Essential content b) Reasons c) Time limits for making award d) Notification to parties and registration 3. Remedies 4. Decision making a) Deliberations b) Majority or consensus? c) Dissenting and concurring opinions d) Signature 5. Settlement a) Settlement recorded in an award b) Settlement without an award c) Use of settlement techniques by arbitrators 6. Effects of the award 7. Correction, supplementation, and amendment a) Correcting the award b) Additional award c) Interpretation of award H. Challenge and Other Actions against the Award 1. Setting aside a) Grounds b) Time limits c) Procedure d) Limiting judicial review of awards by contract e) Effects of successful challenge 2. Appeal on the merits a) Is it allowed? b) Grounds c) Excluding the right to appeal by agreement III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards 1. Statutory or other regime a) Distinction between recognition and enforcement b) Grounds for refusing recognition and enforcement c) Formal requirements for enforcement of awards d) Enforcement procedure B. Foreign Awards 1. Various regulatory regimes a) Domestic rules b) New York Convention c) Other international conventions d) Court practice applying regimes other than the New York Convention 2. Distinction between recognition and enforcement 3. Application of the New York Convention by local courts a) Grounds for refusing recognition and enforcement b) Enforcement procedure c) Public policy as a ground to refuse enforcement d) Examples from practice IV. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation (See CD-ROM) B. Major Arbitration Institutions C. Cases D. Bibliography