Full Contents List

• Introduction
  1. Preface
  2. Foreword
  3. Introduction
• Regional Overviews
  1. Recent Developments in Investment Treaty Arbitration
  2. Challenges to Arbitrators
  3. State of Necessity in Investment Arbitration
  4. Arbitration of Intellectual Property Disputes
  5. Provisional Application of the Energy Charter Treaty
• Country Overviews
  1. Austria
  2. Czech Republic
  3. Denmark
  4. Finland
  5. France
  6. Greece
  7. Ireland
  8. Netherlands
  9. Poland
  10. Portugal
  11. Spain
  12. Ukraine
  13. United Kingdom
  14. Middle East Overview
  15. Lebanon

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This chapter provides an overview of an issue of major importance in international commercial arbitration, namely, interim measures. It is done from the perspective of Spanish statutory provisions, Spanish case law and Spanish international arbitration practice. The aim is to provide an update on this topic with a special focus on recent Spanish court decisions.
To say that Spain has joined the avant-garde of countries boasting a more friendly and pro-arbitration legislation is nothing new. The incorporation of the UNCITRAL Model Law into the Spanish legal system is not just a consequence of the legislature’s initiative, but also of a need originating from the growth and expanding force of the Spanish economy in the global markets. Nonetheless, it is not enough to have a good law without national courts that apply legal mechanisms in a reasonable way. Law 60/2003 on Arbitration (the Spanish Arbitration Law)¹ and its provisions on interim measures will not be effective unless Spanish courts apply and construe them properly. This overview will briefly describe how Spanish courts apply the rules on arbitration and interim measures.

General rules on interim measures and arbitration

According to general rules on interim measures contained in the Spanish Civil Procedure Law,² these measures are only granted if the competent court is satisfied of certain requirements with which the requesting party must comply. These are the following:
• a good arguable case shall be presented (fumus boni iuris);
• there is evidence that a real risk of dissipation of assets exists, to the point that the judgment may not be effective unless the defendant is himself restrained by an injunction or by a similar court order over his assets (periculum in mora); and
• a bond must be deposited by the requesting party, in order to indemnify the defendant in the event that the final decision does not grant the relief sought by the claimant and the temporary injunction or interim measure is thus revoked.

Spanish law encompasses a variety of possible interim measures, such as asset attachment and seizure; court administration of real property, securities, deposits, companies or any other assets which might produce revenues, ordering public registries to register the existence of the court proceedings and injunctions, etc. Spanish courts may also order any other measures deemed necessary to ensure the enforcement of the final decision on the merits.
All the above rules and principles are fully applicable in both court and arbitration proceedings. The Spanish Arbitration Law establishes that the arbitration agreement shall not prevent any of the parties, before or during the arbitration proceedings, from requesting interim measures from a court, nor shall it prevent the court from granting such measures (article 11.3). Therefore no different treatment is envisaged for arbitration as regards court proceedings.

Jurisdiction

Regarding jurisdiction,³ it is further established in article 8.3 of the Spanish Arbitration Law that for the judicial adoption of interim measures, the competent court shall be the court of the place where the award is to be enforced and, failing this, the place where the measures are to produce their effects.⁴
We see here that Spanish regulation is ample enough to allow the claimant to file the request for interim measures before the civil or commercial courts⁵ wherever he or she deems it appropriate and taking into account the interim measures requested. The only restriction refers to the place where the award is to be enforced, which is to be understood as the place where the award was rendered, meaning this is essentially applicable in cases of domestic arbitrations and not to foreign awards as described by article I.1 of the New York Convention. In addition, it should be noted that Spanish law provides for certain exclusive territorial jurisdiction, which cannot be waived.
Spanish arbitration law seeks to facilitate the possibility of requesting interim measures and at the same time guarantee the effectiveness of those measures. For instance, if the requested measure is an anti-suit injunction, the measure should take effect in the place of domicile of the defendant and thus the request for the adoption of these measures should be filed before the court with jurisdiction over that specific location. In the event that the measure requested were the seizure and attachment of a bank deposit, the measure should take effect in the location where the financial institution is located and similarly the request should be filed before the competent court of that place.

Ex parte interim measures

The possibility of requesting and being granted with ex parte interim measures within the framework of international commercial arbitration is a controversial issue, as the UNCITRAL Working Group II has established in their reports. Taking this into account, the Spanish Arbitration Law does not expressly regulate this possibility. It could therefore be understood that in the absence of a limitation on the specific rules governing arbitration, the general rules included in the Civil Procedure Law on ex parte interim measures are applicable to arbitration.
The general rule under the Civil Procedure Law is that interim measures are usually granted upon a party’s request⁶ and after a hearing takes place. In this way, both parties can defend their respective positions and present the necessary evidence. However, interim measures can be extraordinarily granted without a hearing or without even notifying the defendant if they are required for urgent reasons sufficiently evidenced by the requesting party. In order to obtain ex parte interim measures, the requesting party is required to demonstrate (i) the reasons why an urgent situation exists; and (ii) the reasons why the party notice, thus the call to a hearing would imply an additional risk to the general risk, required under an ordinary interim measures application.⁷
Although very few court decisions can be found regarding ex parte interim measures, included below are a couple of decisions showing that such measures are possible and can be requested to support arbitration proceedings:
In a recent decision of 12 January 2007 issued by the First Instance Court of Seville,⁸ a request for the adoption of ex parte interim measures was rejected by the court on the basis of non-compliance with the special requisites, previously described, that would allow for the possibility of granting these measures. The said measures were requested to support ICC arbitration proceedings. The measure requested was an injunction ordering the defendant not to enforce a first demand guarantee issued by an Spanish bank. As mentioned, the court limited its reasoning to verifying whether or not the special requirements were met and did not even consider the possibility that ex parte measures are excluded in the event that they are requested in the framework of arbitration proceedings.
Similarly, in a decision dated 27 June 2003, the Madrid Court of Appeals⁹ found that the first instance ruling rejecting ex parte interim measures was correct and did not dispute that these measures could be requested even if an arbitration clause was agreed. The details of the case are as follows:
• the Argentine parties to a corporate shares purchase contract agreed to arbitration under Argentine law;
• one of the parties, prior to the commencement of court proceedings in Spain, filed a request for ex parte interim measures before Spanish courts against two Argentine companies and also against a Spanish corporation allegedly controlling the former;
• the claimant argued that the request for interim measures and the claim were both to be filed in Spain because of Argentine state monetary measures known as el corralito; and
• the claimant requested the blocking and seizure of certain assets and bank accounts to secure payment of the purchase price.

The lower court decision found that it lacked jurisdiction, in spite of the fact that it also examined the requirements of the ex parte interim measures and rejected the request. The Court of Appeals confirmed the decision, stating that because the interim measures were filed in support of a future litigation to be filed in Spain, the Spanish courts lacked jurisdiction to adopt these measures because of the existence of the arbitration clause.¹⁰

Ante causam interim measures

As previously mentioned, article 11.3 of the Spanish Arbitration Law allows for the requesting of interim measures to state courts before the commencement of arbitral proceedings. The only additional requisite established, if ante causam interim measures are granted, is that the requesting party must take all the necessary steps to initiate the arbitration proceedings¹¹ (eg, filing the request for arbitration before the agreed arbitration institution or starting court proceedings for the designation of arbitrators). Spanish courts apply the said rules with a friendly approach towards arbitration, as can be seen in the following court decisions:
The Málaga Court of Appeals, in its decision dated 19 September 2005,¹² ruled that an interim measure requested before the commencement of the arbitration proceedings can be adopted, even if at the time of the appeal the procedure has not been initiated, because the requirement to show that the necessary steps to initiate the arbitration have been taken only applies once the request is granted. In this case, the requested measure (namely registration of the dispute in the Real Estate Registry) was rejected because the general requirements of interim measures were not met.
In a case decided by the Barcelona Court of Appeals in its ruling dated 16 March 2005,¹³ a previous decision of the First Instance Court was revoked and an interim measure was granted, which consisted in the registration in the Companies Registry of the challenge of a corporate decision of a certain company. Because of the interesting nature of this decision, it is worth briefly going through the records of the case.
The interim measures application was filed along with a statement of claim before the Barcelona courts; the relief being sought was the annulment of a certain corporate decision which was registered in the Barcelona Companies Registry. The Barcelona court rejected the interim measure because it lacked the general requirement that there was a risk that the final judgment would not be effective by the time it was rendered. After the request was rejected, the Barcelona court accepted a motion challenging its jurisdiction due to the existence of an arbitration clause included in the registered by-laws of the company.
The Barcelona Court of Appeals established that, irrespective of the lack of jurisdiction, the interim measures could be granted as it considered that in this case the required risk situation certainly existed. Furthermore, the interim measures were granted even though there was no evidence in the report of the case that the arbitration proceedings were initiated.

Interim measures in support of proceedings for recognition and enforcement of arbitral awards

At any stage during the proceedings for recognition and enforcement (exequatur), and even before the request for exequatur is filed, the requesting party may apply for interim measures. Although there is no express statutory rule establishing the possibility of requesting interim measures in exequatur proceedings, this possibility has been expressly admitted by Spanish Supreme Court case law both in the recognition and enforcement of foreign court decisions¹⁴ and of foreign arbitral awards.
Before the Spanish Arbitration Law entered into force, the Spanish Supreme Court had jurisdiction to decide on exequatur proceedings, although the Procedural Law granted the Courts of First Instance competence to decide on interim measures applications. In that legal framework, which has been superseded,¹⁵ the Supreme Court has continuously acknowledged the possibility of granting interim measures to secure exequatur proceedings: see, inter alia, rulings dated 9 October 2001, 28 May 2002 and 17 June 2003.¹⁶

Interim measures against States in investment arbitration

In the last few decades, the UNCITRAL Arbitration Rules have been used considerably in investment arbitration arising out of bilateral investment treaties (BITs). The UNCITRAL Arbitration Rules currently rank below the ICSID Rules as the most frequently used set of rules in investor-state arbitration,¹⁷ mostly because BITs include public offers to arbitrate referring, inter alia, to ad hoc arbitration under UNCITRAL Arbitration Rules.
This trend gives investors who do not benefit from the privileged enforcement mechanism envisaged under the Washington Convention the opportunity to initiate exequatur proceedings against states in countries where the given state has assets and, by the same token, to request interim measures in that particular place. This data gives us the opportunity to examine the possibility of requesting interim measures in Spain against states in the framework of investment arbitration.
First of all, it should be stressed that article 2.2 of the Spanish Arbitration Law on matters subject to arbitration specifically rules that:
Where the arbitration is international and one of the parties is a State or a company, organisation or undertaking controlled by a State, that party shall not be able to invoke the prerogatives of its own law in order to avoid the duties arising from the arbitration clause.

If the privileges of a given state cannot be opposed, with reference to the validity of an arbitration clause (namely immunity of jurisdiction), it is not a big leap to make to sustain that enforcement of awards (exequatur) and its ancillary proceedings (interim measures) should not be affected by similar privileges (namely, immunity of enforcement). In fact it could be argued that the immunity of enforcement being the natural consequence of the immunity of jurisdiction, and the arbitration and exequatur proceedings as well as the award being the natural consequence of an arbitration clause, neither the exequatur and arbitration proceedings nor interim measures should be affected by said state prerogatives. Nevertheless, it should be noted that the above ‘statement of logic’ faces several problems. For instance certain rules of the UN Convention on Jurisdictional Immunities of States and Their Property, regulating state immunity and interim measures (articles 18 and 19), do establish some restriction on the adoption of interim measures against states.
In spite of this, we can find some limited Spanish judgments dealing directly with immunity of enforcement of “organisations or undertakings controlled by a State”, such as foreign central banks. We have identified at least one judgment where the Madrid Court of Appeals maintained a First Instance Court judgment granting the seizure and enforcement of assets belonging to the Cuban National Bank.¹⁸ However, it should be noted that the Spanish concept of immunity of enforcement (as well as immunity of jurisdiction) is very narrowly constructed and we understand that the same criterion used as regards any state would be used in relation to “organisations or undertakings controlled by a State”. Nevertheless, certain Constitutional Court case law might support a potential request for interim measures in investor-state arbitration:
• The Constitutional Court has said that “when the enforcement on determined assets does not affect the sovereignty of the foreign State, both domestic law and international law reject the lack of enforcement of judgements”;¹⁹ and
• “Enforcement is an integral part of the fundamental right provided for in Article 24 of the Constitution [and thus any other interpretation] would deprive the law of its efficacy and would transform it into a mere declaration of intention”. In this sense, “the decision of no enforcement must be adopted as regards a legal provision, but this provision must be construed in the more favourable way to grant the enforcement”. Moreover, the Constitutional Court declared that “lower courts have to exhaust the enforcement possibilities available, such as credits, aid, or subsidies granted to the foreign State”.²⁰

Final remarks

As a general statement it can be said that Spanish courts reasonably apply the legal mechanisms designed in the national legislation on arbitration and interim measures. Of course, as in any other jurisdiction, we can still find controversial decisions, but it is possible to affirm with a good degree of certainty that there is a structured and strong number of Spanish court decisions available supporting the possibility of asking for and being awarded with interim measures in domestic and international arbitration procedures, even in complex arbitrations involving investor-state disputes.

Notes

1 State Official Gazette No. 309, 26 December 2003. An English version of the Spanish Arbitration Law can be downloaded from the official website of the Spanish Arbitration Club (Club Español del Arbitraje), at http://www.clubarbitraje.com/files/docs/spanish_arbitration_law.doc.
2 Law 1/2000, enacting the Civil Procedure Law (State Official Gazette No. 7, 8 January 2000).
3 Note that ‘jurisdiction’ in this article refers to the competent court within Spanish territory, taking into account that only Spanish courts have the power to adopt interim measures in Spain. Thus no reference is made to international jurisdiction.
4 In the same sense, article 724 of the Civil Procedure Law states that where interim measures pending arbitration proceedings or the judicial setup of the arbitration is requested, the competent court shall be the court of the place where the award is to be enforced and if not, in the place where the measures are to produce their effects.
5 Spanish commercial courts have exclusive jurisdiction over matters related to insolvency proceedings, personal liability of corporate directors, corporate matters, unfair competition, trademarks, patents, copyright and antitrust. Therefore, those matters regulated in the Spanish Arbitration Law, as regards cooperation of civil courts with arbitral tribunals, and thus including interim measures, shall be dealt with by commercial courts when the matter involved falls under the listed exclusive jurisdiction topics.
6 Under Spanish law, sua sponte court rulings on interim measures are not allowed.
7 See article 733 of the Civil Procedure Law.
8 Unpublished decision.
9 JUR 2003, 248576.
10 Even though this decision contains an argument on international jurisdiction and interim measures that can be criticised, it is also true that the interim measures being ancillary to the main proceedings, and an arbitration clause existing, strictly speaking Spanish courts lacked jurisdiction to adopt interim measures in support of court litigation.
11 See article 730.3 of the Civil Procedure Law.
12 JUR 2006, 30415.
13 EDJ 2005, 51033.
14 See decisions dated 27 November 2001 [RJ 2002, 240], 29 January 2002 [JUR 2002, 48100] and 28 May 2002 [RJ 2002, 5023]).
15 Currently the Spanish Arbitration Law and Procedural Law establish that the First Instance Courts have jurisdiction to rule both on exequatur of awards and interim measures.
16 RJ 2001, 9419; RJ 2002, 5023; RJ 2003, 164181.
17 United Nations Conference on Trade and Development (UNCTAD), November 2005, at http://www.unctad.org/en/docs//webiteiit20052_en.pdf.
18 Madrid Court of Appeals No. 493/2000, 19 June 2000 [AC 2000, 2544].
19 Spanish Constitutional Court decision No. 112/2002, 1 July [ATC 2002, 112].
20 Spanish Constitutional Court decision No. 18/1997, 10 February [RTC 1997, 18].

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