Commercial Arbitration

Spain

Calvin A Hamilton

Hamilton Abogados SLP

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    The New York Convention, was ratified by Spain without reservations or declarations and entered into force on 10 August 1977.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    Spain is a party to bilateral treaties regarding the recognition and enforcement of arbitral awards with the following countries: Morocco (30 May 1997); Bulgaria (23 May 1993); People’s Republic of China (2 May 1992); Mexico (17 April 1989),Brazil (13 April 1989); Uruguay (4 November 1987); Czechoslovakia (4 May 1987), Italy (22 May 1973), France (28 May 1969), Colombia (30 May 1908), and Switzerland (19 November 1896).

    The European Convention on International Commercial Arbitration of 1961 was ratified by Spain in 1975.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    The Spanish Arbitration Act of 2003 is based on the UNCITRAL Model Law, notable differences being a default time limit of 6 months for the rendering of the award and a single arbitrator as default tribunal size. Except for employment arbitration, it applies to all arbitral proceedings with their seat in Spain, which are not governed by special legislation (such as consumer arbitration, or ground transportation), and it also applies to the latter subsidiarily.

    Moreover, certain provisions (regarding interim measures by courts, the mechanism for invoking an arbitration agreement if brought before the courts, and the recognition and enforcement of awards) apply to arbitrations with seat a outside of Spain.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    The most prominent arbitration institutions based in Spain and which also act as appointing authorities are the Court of Arbitration of the Official Chamber of Commerce of Madrid (Corte de Arbitraje de la Camara Oficial de Madrid), the Arbitral Tribunal of Barcelona (Tribunal Arbitral de Barcelona), the Civil and Mercantile Court of Arbitration (Corte Civil y Mercantil de Arbitraje), the Spanish Court of Arbitration (Corte Española de Arbitraje) and the Court of Arbitration of the Madrid Bar Association (Corte de Arbitraje del Ilustre Colegio de Abogados de Madrid).

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    Foreign institutions can operate in Spain

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    Arbitration related competences are presently shared by the Courts of First Instance (Juzgados de Primera Instancia) and the Regional Superior Courts (Tribunales Superiores de Justicia). The familiarity with the law and practice of international arbitration varies from court to court, the High Courts being more likely to be more experienced with international arbitration.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    The Arbitration Act follows article 7 of the 1985 UNCITRAL model law and thus establishes the requirement that the arbitration agreement be in writing. However, Spanish courts do not understand this requirement in a strict sense but rather in the sense that the test for the validity of an arbitration agreement is whether there is sufficient evidence of a concurring will of the parties to submit to arbitration. This also applies to arbitration agreements contained in general terms and conditions.

    For international arbitration the Act liberally provides that the arbitration agreement shall be valid if the requirements contained in the rules of law chosen by the parties to govern the arbitration agreement, or if the rules of law applicable to the merits of the dispute, or Spanish law are met.

    The new law provides that challenges to corporate resolutions can be resolved through an institutionally administered arbitration process by one or more arbitrators to be appointed by the named institution. The arbitrability of these disputes must be included in the company by-laws. The annulment of corporate resolutions by award is recordable at the Mercantile Registry as well as the cancellation of any contrary previous recordings.

    For local or state entities to be bound by an arbitration agreement a Governmental Decree is required.

    Arbitration agreements can cover future disputes.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    The Arbitration Act states the general rule that disputes relating to matters that may be freely disposed of at law are arbitrable. Therefore only few matters of private law, such as certain family law issues, cannot be subject to arbitration. Spanish legislation expressly recognises the arbitrability of industrial property. Special rules apply to intellectual property disputes for which a Mediation and Arbitration Commission has been established. Intra-company disputes are arbitrable. The question whether antitrust issues are arbitrable has yet to be settled.

    For international arbitration the Act displays a high degree of flexibility in that it provides that a dispute shall be capable of being subject to arbitration if the requirements contained in the rules of law chosen by the parties to govern the arbitration agreement, or if the rules of law applicable to the merits of the dispute, or Spanish law are met.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    Third parties who do not sign the arbitration agreement cannot be compelled to engage in arbitration proceedings (for exceptions see question 11). However, nothing will impede a third party from joining arbitration proceedings if all the relevant parties mutually agree to the joinder.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    Unless the parties involved agree, or the Rules governing the arbitration proceeding permit, such consolidation is not possible.

    For example the Court of Arbitration of the Madrid Chamber of Commerce allows consolidation. Rule 9 provides that such consolidation may be allowed at the request of one of the parties provided where an arbitration proceeding already exist under the same Rules and pending between the same parties. Under these circumstances, the court may, after consulting with the parties and with the arbitrators join the request to the pending proceeding.

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    No support can be found in Spanish legislation or case law for the “group of companies” doctrine, as put forward in the ICC case Dow Chemical France v Isover Saint Gobain, in the sense that a non-signatory may benefit from or be bound by an arbitration agreement signed by a group company because of its role in the transaction. Only in cases of abuse of the corporate form or fraud, have courts found a disregard of the legal entity to be justified (“lifting of the veil”). Other courts, however, have rejected the extension of an arbitration agreement to non-signatories even in those cases of abuse of law or fraud.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    The separability doctrine is expressly recognised by the Spanish Arbitration Act.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    The principle that arbitrators may rule on their own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement (positive competence-comptence) is expressly recognised by the Spanish Arbitration Act. Some commentators have interpreted the Act as also providing that the courts, if seized of an action in respect of which the parties have signed an arbitration agreement, are limited to a prima facie review of the validity of said arbitration agreement (negative competence-competence). Nevertheless such interpretation is dubious, and the vast majority of case law shows no restraint regarding the scope of review in such situations.

    There is no specific legal provision regarding a court ruling on an issue relating to the tribunal’s jurisdiction and competence. However, there is minority case law where courts have admitted actions for the declaration of nullity of arbitral agreements.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    Spanish arbitration law provides for a default six-month time limit for the rendering of the award (extendable by the arbitrators for a maximum of two months), commencing with the filing of the statement of defence. Since this time limit might be too short in complex international cases – especially those with extensive taking of evidence – parties are advised to stipulate otherwise.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    In Spain, institutional international arbitration is more common than ad hoc international arbitration. UNCITRAL Rules are commonly used in ad hoc international arbitrations.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    The Spanish Arbitration Act provides for the possibility of arbitrations with multiple claimants or respondents. The only legal provision is that, failing stipulations by the parties, in an arbitration with three arbitrators, the multiple claimants and/or the multiple respondents, must each agree a common arbitrator, and the two arbitrators thus appointed are to appoint the third arbitrator; if either the claimants or respondents fail to agree the appointment of their respective arbitrator, all the arbitrators are to be appointed by the competent court.

    Any other issue related to multiparties, or an alternative system for the appointment of arbitrators, has thus to be addressed in the arbitration agreement.

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    The Spanish arbitration Act provides that, unless otherwise agreed by the parties, an arbitration shall be considered to commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. There is no limitation period for commencing arbitral proceedings. However, if a party sues before the courts and the other does not invoke the arbitration agreement by timely raising the declinatory exception (comparable to a motion to stay proceedings and compel arbitration), the parties are deemed to have waived the arbitration agreement by mutual agreement.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    For international arbitrations the applicable substantive law is that freely agreed to by the parties. Absent a choice of law provision, the applicable substantive law is subject to the discretion of the arbitral tribunal.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    The Arbitration Act expresses that any competent natural person can act as an arbitrator provided that she is not prevented from doing so by the legislation regulating the practice of her profession.

    Judges are barred from acting as arbitrators.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    The Spanish Arbitration Act expressly provides that, unless otherwise agreed by the parties, no person shall be precluded by reason of his nationality from acting as an arbitrator. For non-nationals there are no special immigration or other requirements.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    The Arbitration Act provides as default rule that the arbitration shall be conducted by a sole arbitrator appointed by the competent court. In an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator, who shall chair the arbitration panel. If a party fails to appoint an arbitrator or the two appointed arbitrators fail to reach an agreement on the third arbitrator, the respective appointment shall be made by the competent court.

    For multi-party arbitrations see question 16.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    Arbitrators are not afforded immunity. If the arbitrators do not comply with their duties, they shall be liable for any damages they cause by reason of bad faith, recklessness or wilful misconduct. Further, the Spanish Supreme Court has found that “the essence of arbitration and the arbitration agreement, in as much as it displays the will of the parties to elude the state courts, entail that the intervention of state courts in arbitration has a character of an extraordinary control” for which only manifest breaches can constitute grounds for an arbitrator’s liability. Moreover in order to prevail against an arbitrator in an action for damages based on liability, the party must have first exhausted all available remedies to review the decision to which the damage is ascribed, be it in the form of a motion for correction or clarification of the award, a setting-aside action or any other means of review stipulated in the arbitration agreement.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    The Spanish Arbitration Act provides that, unless otherwise agreed, both the arbitrators and the arbitral institution may request from the parties an advance of the fees and expenses of the arbitrators and those that may be incurred in the administration of the arbitration proceedings.

    The relevant institutions provide fundholding services for institutional arbitrations.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his impartiality, independence or qualifications.

    Unless the parties have agreed otherwise, a party challenging an arbitrator must do so within fifteen days of becoming aware of the circumstance likely to give rise to justifiable doubts concerning impartiality or independence. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitrators shall decide on the challenge.

    Courts do not intervene in the challenge of arbitrators until the annulment phase, when a party who was not successful with its challenge may raise the challenge when applying to set aside the award.

    The rules of most Spanish arbitration institutions (and of all those mentioned in question 4) provide for challenges of arbitrators to be decided by the institution.

    It is possible that the IBA Guidelines on Conflicts of Interest in International Arbitration be taken into account. Further, the Spanish Arbitration Club has put out two documents, Code of Good Arbitration Practice and Recommendations on the Independence and Impartiality of Arbitrators, both of which will, in short, constitute soft law.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    Unless otherwise agreed by the parties, the arbitrators may, upon request of any party, order such interim measures of protection as they may consider necessary in respect of the subject matter of the dispute. The arbitrators may require the party which requests such measures to provide appropriate security. Interim measures ordered by arbitral tribunals in arbitrations with their seat outside of Spain, can be recognised and enforced in Spain like arbitral awards.

    In accordance with both arbitration law and civil procedure rules, Spanish courts may order, before and after the commencement of arbitration proceedings, any interim measure upon the request of any party.

    Anti-suit injunctions are a remedy alien to the Spanish legal system.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    Arbitrators and arbitral institutions may – and usually do – request advances on fees and expenses of the arbitrators and those that may be incurred in the administration of the arbitration proceedings. Although the principle “costs follow the event” also applies in Spain (see question 39), it is not common practice for a party to request security for its legal costs.

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    Spanish Arbitration law upholds the right of the parties to enter into contracts. Therefore, the parties are free to mutually agree as they deem fit and arbitrators are bound by that agreed by the parties. The only mandatory legal provision is that the parties be given equal treatment and due process

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    If a respondent fails to timely communicate his statement of defence, the arbitrators shall continue the proceedings, without treating such failure as an acceptance or admission of the facts alleged by the claimant. If he fails to appear at a hearing or to produce evidence, the arbitrators may continue the proceedings and make the award on the evidence before them.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    There is no limitation as to the admissible types of evidence and the Arbitration Act only contains provisions regarding the appointment of experts by the arbitral tribunal and the assistance of the state courts in the taking of evidence. With regard to the appointment of experts by the arbitral tribunal, the arbitral tribunal may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents or items.

    While not yet widespread, there is a growing tendency to seek guidance from the IBA Rules on the Taking of Evidence in International Commercial Arbitration, especially concerning the submissions of written witness statements, which are alien to Spanish procedural tradition.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    The arbitral tribunal may request court assistance in the taking, or preservation of evidence. This assistance may consist of the taking of evidence before the court or in the adoption by the court of specific measures necessary for the evidence to be taken before the arbitrators or otherwise preserved.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    The Spanish Arbitration Act stipulates that, unless the parties have agreed otherwise, the arbitrators have discretion regarding the taking of evidence and may order ex officio the taking of evidence, including document production. The rules of many Spanish arbitration institutions contemplate orders by the arbitrators to produce documents, and some lay down the rule that if a party refuses to produce or grant access to evidence under that party’s control, the arbitrators may draw adverse inferences from such behaviour.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    Hearings are not mandatory under Spanish arbitration law.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    There is no legal restriction as to the place where hearings and procedural meetings are conducted.

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    Any decision of the arbitral tribunal, including the final award, shall be made by a majority of all its members, unless the parties have agreed otherwise. If there is no majority, the decision is made by the chairman. The law requires that a reason be given for an omitted signature.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    If the dispute is arbitrable (see question 8) there are no special restrictions regarding types of remedies or relief that an arbitral tribunal may grant.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    Dissenting opinions are expressly allowed by the Spanish Arbitration Act. They are not uncommon.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    Unless otherwise agreed by the parties, the arbitrators shall decide the dispute within six months from the date of submission of the statement of defence, time limit which may be extended by the arbitrators for a period not exceeding two months. The expiry of the time limit shall result in the termination of the arbitral proceedings and the termination of the mandate and competence of the arbitrators.

    The award shall be made in writing and shall be signed by the arbitrators, who may issue a dissenting opinion. Where there is more than one arbitrator, the signatures of the majority of members of the arbitral tribunal or that of its presiding arbitrator alone shall suffice, provided the reason for any omitted signature is stated. The award shall be deemed made in writing when its contents and signatures are recorded and accessible for subsequent consultation in an electronic, optical or other type of format.

    The award shall be motivated, and it shall state its date and the place of arbitration.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    If the parties have not provided otherwise, the award shall be handed down within six months from the end of the term set for the response. The arbitrators may with reason extend the time for handing down the award by two months.

    Unless otherwise agreed, applications for a correction or clarification of the award, or for supplemental award shall be filed within ten days of notification of the award. The tribunal shall decide on the application for correction or clarification within 10 days and on a request for a supplementary, ultra vires or ultra petita award, within 20 days. An action to set aside an award shall be brought within two months of its notification. This time limit is duly extended when a party applies for correction, clarification or supplemental award.

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    Subject to the agreement of the parties, the arbitrators can decide who bears the responsibility for costs related to the arbitration. The arbitrators have the authority to exclude parties’ expenses that they consider inappropriate and reduce those they regard as excessive. With respect to cost recoverability, unless otherwise agreed by the parties, the arbitrators are not bound by any rules as the Spanish Arbitration Act is silent in this respect. The arbitrators may make their orders on arbitration costs on the basis of the principle that the decision proportionally reflects the party’s relative success and failure of their respective positions in the case. They also may apply the method of Spanish civil procedure, which, in general terms, only provides for recoverability of the costs by a party who is successful on all accounts, whereas in case of a mere partial success, each party bears its own expenses and the common costs are split.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    Whether interests may be awarded depends on the applicable substantive law. Spanish law provides for interests on late payments.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    Under Spanish law there is no appeal of arbitral awards in the sense of review of the merits. However, within two months of the notification of an award (or of the decision on a request for correction, interpretation, ultra vires, ultra petita or complementary award) an action to set aside a definitive arbitral award may be brought before the Regional Superior Courts (Tribunales Superiores de Justicia) of the place where the award was made, on the following grounds:

    - the arbitration agreement does not exist or is not valid;

    - the party requesting annulment was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present its case;

    - the arbitrators have decided on questions not submitted to their decision;

    - the appointment of the arbitrators or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a mandatory provision of the Arbitration Act, or, failing such agreement, was not in accordance with the Arbitration Act;

    - the arbitrators have decided on questions not capable of being settled by arbitration;

    - the award is in conflict with public policy.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    Like court judgments, awards which have become final and binding may very exceptionally be the subject of a “revision” (revision) before the courts, in cases such as the retrieval of decisive documents not available at the time due to force majeure or reasons imputable to the other party, or in cases where the award was attained through bribery, violence, fraud, false testimony, forged documents. A successful revision results in the revocation of the arbitral award.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    While the Arbitration Act does not expressly address the validity of such exclusion agreements, the Spanish Supreme Court has found – though under a former arbitration act – that the right to apply for a vacatur cannot be waived. Commentators concur that this finding also applies to the arbitration act in force.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    There is not enough case law to establish a general attitude of the Spanish courts regarding this issue. While older decisions by the Supreme Court, which was formerly competent for the exequatur of foreign awards, evidence an understanding according to which an annulled award is null and void and thus cannot be recognised, there is more recent sporadic case law by the now competent lower courts indicating a more propitious attitude towards the “French position”, favourable to the enforcement of vacated awards.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    Spanish legislation is favourable to arbitration, and accordingly Spanish courts generally display a pro arbitration position.

    The recognition and enforcement of foreign awards are governed by the New York Convention, the procedure being the same as that for the recognition and enforcement of foreign judgments.

    Domestic awards are enforceable following the regular Spanish procedural rules for enforcement of judgments and other enforceable titles. Similar to Article VI of the New York Convention, a party against whom enforcement is sought may request a stay of the proceedings if an action to set aside the award has been filed.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    The Spanish Arbitration Act expressly provides that where the arbitration is international and one of the parties is a state or a state-controlled entity, that party shall not invoke the prerogatives of its own law in order to avoid obligations arising from the arbitration agreement.

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    Arbitrators, the parties, and the arbitral institutions, as the case may be, are bound to maintain the confidentiality of information they may have access to in the course of the arbitration proceedings. Most Bar Association Rules of Ethics oblige the lawyers involved to observe the secrecy of all information obtained during the process.

    Further, arbitration Rules also provide that the arbitrators and the arbitration institution have a duty to keep the arbitration, the deliberations and the award confidential. In addition, the tribunal may take those steps necessary to protect trade or industrial secrets and other confidential information. Besides, the parties are free to contractually agree such a duty.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    While evidence produced and pleadings filed in the arbitration are in principle confidential, it is very doubtful that they can be kept confidential if an action to set aside the award is filed, since these proceedings are not confidential but public.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    Spanish lawyers acting as counsel or as arbitrators are bound by Spanish deontological rules. All arbitrators are bound by the provisions of the Spanish Arbitration Act regarding independence and impartiality. No special ethical codes or professional standards apply to foreign counsel, except that they too are most likely bound by their ethics rules in their respective jurisdictions.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    Arbitral proceedings in Spain are often more formal than in countries with a central and northern European or English tradition, and to some extent Spanish lawyers – in the role of arbitrator or counsel – tend to mimic the ordinary Spanish civil procedure, even in international arbitration.

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