In this case the claimant alleged that he had not consented to arbitrate: he denied having received any general conditions attached to the contract, and argued that, in any case, an arbitration agreement included in general conditions was not valid.

The Spanish Arbitration Act provides that the validity of an arbitration agreement included in a standard form contract has to be determined by reference to the law applicable to such contracts, in this case the General Conditions Act (the Act), dated 13 April 1998. Under the Act, a provision contained in one party's general conditions is valid as long as it is known and accepted by the other party. Regarding arbitration agreements, the Act states that in consumer contracts, arbitration agreements are valid only if they provide for consumer arbitration.

The Court of Appeal decision highlights that the mere fact that the contract is in a standard form or that it is included in general conditions does not necessarily imply a situation of abuse, imbalance or unfairness for one of the parties - especially if both parties to the contract are companies. The court observed that a company that agrees to a standard form cannot later argue that the contract is unfair on the basis of the type of contract. Further, a company cannot argue that it was unaware of the general conditions because a company has a duty to know the obligations that it is agreeing to. Consequently, it is not acceptable for a company to reject its consent to arbitration based on the fact that the contract was drafted by the other party or based on its own lack of due diligence when signing the contract.

In this case, the court considered that the fact that the contract included several references to the general conditions was sufficient to conclude that the company knew (or should have known) the content of those general conditions. Therefore the court inferred that the company consented to arbitration when it signed the contract.

The decision of the Court of Appeal to uphold the validity of the arbitration agreement in contracts between companies regardless of the form of the contract seems a straightforward conclusion under the Act. However, the Spanish courts have on occasion been reluctant to uphold arbitration agreements contained in general conditions, as a result of the influence of the strict regulation of choice of court agreements. In this regard, Article 54 of the Spanish Civil Proceedings Act invalidates a choice of court contained in standard form contracts, general conditions or contracts with consumers.

The strict wording of this provision leads to some inconsistencies: two Spanish companies can agree to submit their disputes, for example, to the Lithuanian courts (pursuant to the European Regulation 44/2001), or to arbitration in Paris under the Spanish Arbitration Act, but cannot validly agree in a standard form contract or in general conditions to submit their disputes to any Spanish court other than the court determined by the rules contained in the Spanish Civil Proceedings Act.

Judgment of the Court of Appeal of Salamanca (1st Section), 15 September 2009 (no.110/2009).