New Trends in SPANISH ARBITRATION

Article excerpt

Spain's entry into the European Union in 1986, its rapid economic expansion and liberalization of trade have enabled it to actively participate in the globalization of commerce and communications. Spain has sharply increased its foreign direct investments, particularly in Latin America, where it has become the largest investor after the United States. Spain also has entered into numerous bilateral investment treaties (especially with Latin-American nations), which provide for the arbitration of investment disputes.

Spain's new economic position has demanded modern arbitration legislation and institutions. In 1994, the Spanish Court of Arbitration entered into an agreement of cooperation with the American Arbitration Association (AAA) by which these arbitral institutions agreed, among other matters, to promote the wider use of arbitration and to provide each other, upon request, with facilities or administrative services in connection with arbitration proceedings.

Additional progress was made in 2000 through the reforms to Spain's civil procedure law, and in November 2002, when Spain's Superior Council of Chambers of Commerce established the Euro-American Court of Arbitration.1 The Euro-American Court, as its name implies, is intended to exploit Spain's unique position as a bridge between Europe and the Americas. It has been developed with the collaboration of Spain's Chambers of Commerce in other European countries and in North and South America, which will help promote the use of the court.

However, the most pressing need was for a new arbitration act. This has now been addressed by the Spanish Parliament. On Dec. 23, 2003, the new Spanish Arbitration Act was enacted, effective March 2004. The new law is based on the 1985 United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (the UNCITRAL Model Law), and as such, it brings Spanish arbitral law and practice into conformity with international standards.

These developments should ensure that Spain, a member of the EU and the Hispanic world, will become an attractive venue for international arbitration generally and, specifically, for disputes between European and Latin American parties.

Background

Spanish Arbitral Institutions. There are several established arbitral institutions in Spain, including the Barcelona Court of Arbitration, the Civil and Commercial Court of Arbitration, and the Madrid Court of Arbitration. Of particular importance is the Spanish Court of Arbitration and the national network of 53 regional Courts of Arbitration, sponsored by the Superior Council of Spanish Chambers of Commerce.

The areas giving rise to the most arbitrations in Spain involve construction, real estate, insurance, telecommunications, new technologies, distribution and corporate governance. The Spanish Court of Arbitration has encouraged the use of arbitration domestically by entering into a number of strategic alliances with leading sectors of Spanish economy. For example, it has signed agreements with representatives of the financial, telecommunications and energy sectors, with professional associations representing notaries and registrars, the Spanish National Credit Insurance Agency, and with the Association of Small and Medium Size Businesses. As a result, arbitration clauses will be regularly included in the bylaws of new corporations, export contracts, insurance policies and general commercial contracts. Spain's Chambers of Commerce have identified electronic commerce, domain-name disputes and intellectual property as areas of significant fields of potential future growth.

The Spanish Court of Arbitration and its network of regional courts also administer commercial mediation and conciliation services to parties wishing to access these forms of alternative dispute resolution. Mediation and conciliation is growing in popularity in Spain. In 2002, the regional courts administered 237 commercial mediations and conciliations, a 20% increase over the previous year. …