The New Spanish Arbitration Act

The New Spanish Arbitration Act (the ?New Act?) has prompted the adoption of new Arbitration rules. This overview outlines the most relevant features of the rules of four of the main Spanish Arbitration institutions: the Corte de Arbitraje de Madrid (?CAM?), the Corte Española de Arbitraje (?CEA?), the Corte Civil y Mercantil de Arbitraje (?CIMA?) and the Tribunal Arbitral de Barcelona (?TAB?).

Appointment of arbitrators

In the absence of choice by the parties, the rules of the CAM and CIMA foresee that there will be a sole arbitrator and the TAB and CEA rules foresee that the Court itself will decide the number.

The CAM and the CIMA have their own lists of arbitrators but, whereas the CAM allows the parties to choose arbitrators who are not in their lists, the CIMA does not. Where three arbitrators are to be appointed, the CAM, CIMA and CEA rules allow each party to choose one. The President will be appointed by the Court, according to the CAM and TAB rules, or by the two co-arbitrators chosen by the parties, according to the CIMA and CEA rules.

Where there is a sole arbitrator, the CAM rules foresee that it will be appointed by the Court, whereas the CIMA and CEA allow the parties to agree on the identity of the sole arbitrator and, in the absence of agreement, the Court will make the appointment itself. Where the CEA has to appoint arbitrators, it will draw up a list with three names for each arbitrator to be appointed and will make a decision in accordance with the parties? expressed preferences and dislikes. The TAB rules foresee that the parties can express preferences in the request for arbitration and in the answer to the request; if any of the names put forward by one party are the same as the ones put forward by the other party, it will be understood that both parties have chosen him as arbitrator. Where there is no such coincidence, the TAB will submit to the parties a list with six names from whom it will make the necessary appointments, but the parties will still be able to express their preferences.

Challenge and removal of arbitrators

Where a challenge is not accepted by the opposite party or the arbitrator decides not to resign, the CAM and CEA rules foresee that a decision will be made by the arbitration tribunal or, in the case of a sole arbitrator under the CAM rules, by the Court itself. The CIMA rules foresee that arbitrators themselves will accept or reject any challenges made. The TAB will decide on challenges.

According to the CAM and CEA rules, where an arbitrator cannot fulfill its duties for any reason, it can resign or be removed from office by an agreement of the parties or by a decision of the Court and the CEA rules specify that in case that there are three or more arbitrators, all arbitrators, except the one whose removal has been requested, will decide upon the removal. This is the solution adopted by the New Act, directly applicable, in this respect, to arbitrations subject to the CIMA rules. The New Act also foresees that, in case of a sole arbitrator and in the absence of an agreement between the parties about the removal, special court proceedings may be commenced. The TAB will decide on any requests to remove an already appointed arbitrator.

Competence of the arbitrators and interlocutory measures

The CAM, CIMA and CEA rules foresee that arbitrators have competence to decide upon their own competence and upon any objections raised about the existence or validity of the arbitration agreement or any others, which prevent the arbitrators from issuing an award on the merits. Significantly, the TAB rules allow for multiparty arbitration, in certain cases, where there are several interrelated agreements. Unless the parties have decided otherwise, the CAM and CEA rules foresee that arbitrators may grant interim measures. Nothing is foreseen in the CIMA rules in this regard, so that the New Act will be directly applicable. The TAB rules allow arbitrators to grant interim measures inaudita parte in exceptional cases.

Arbitration proceedings

The CAM and CEA rules foresee that a request for arbitration may be rejected if the Court understands that there is not a prima facie valid arbitration agreement. The CAM and CIMA rules foresee that the parties will simultaneously file their statements of claim and defense and, according to the CIMA rules, there must be an answer to the statement filed by the opposite party. The TAB rules allow arbitrators to choose one of three different types of proceedings: simplified, ordinary and abridged. Arbitrators under the CEA rules may decide to prepare terms of reference. As a general rule, the parties are able to produce evidence and appoint experts.

The award

According to the CAM rules, arbitrators will respect the choice of law made by the parties. Nothing is foreseen in the remaining rules, so that the New Act will be applicable, which orders arbitrators to respect the choice of law made by the parties, provided that the arbitration is international. The award shall be rendered within five or six months. Arbitrators may decide to extend this time frame for two more months but the CIMA rules foresee that the parties can decide otherwise.