Future amendments to the Spanish Arbitration Act | Practical Law

Future amendments to the Spanish Arbitration Act | Practical Law

Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP

Future amendments to the Spanish Arbitration Act

Practical Law Legal Update 8-501-6252 (Approx. 3 pages)

Future amendments to the Spanish Arbitration Act

Published on 03 Mar 2010 • Spain
Alejandro López Ortiz (Senior Associate) and Silvia Martínez (Junior Associate), Lovells LLP
The Spanish Government has announced a raft of bills which will affect the practice of arbitration and mediation in Spain.
On 19 February 2010, as part of a programme to modernise the Spanish judicial system, the Spanish Government announced a raft of bills which will affect the practice of arbitration and mediation. Although the text of the bills has not been made public, a press release has been issued which explains the main features of the bills.
One of the bills, which would amend the Spanish Arbitration Act 60/2003 (SAA), introduces provisions such as:
  • The removal of the requirement for arbitrators to be lawyers. If the bill is implemented, there will be no need for a sole arbitrator to be a lawyer, and in the case of a three-person arbitral tribunal, only one of the arbitrators will be required to be a lawyer. This requirement currently applies to domestic arbitrations, except when the parties have agreed that the dispute must be decided in equity.
  • The re-allocation of jurisdiction for the support of arbitration proceedings (such as the appointment of arbitrators and the recognition and enforcement of foreign awards) from the Courts of First Instance to the Superior Courts of Justice of the Spanish Autonomous Region (Comunidad Autónoma).
The press release does not say whether the bill will take into account a prior amendment introduced by Act 13/2009 on the reorganisation of the judicial administration system, which is due to enter into force on 4 May 2010. Act 13/2009 assigns jurisdiction over the recognition and enforcement of foreign awards to Commercial Courts (instead of Courts of First Instance) when the subject matter of the award is within their jurisdiction (that is, transport, maritime law, corporate disputes, intellectual property, and so on). It remains to be seen whether the new bill will maintain that position or whether the Superior Courts of Justice will attract all applications for recognition and enforcement regardless of the subject matter of the award.
Act 13/2009 also clarifies that a decision granting or rejecting the recognition and enforcement of a foreign award can be appealed. This was an issue that had been controversial in Spanish case law. Therefore, another question which arises is whether, if jurisdiction over recognition and enforcement is ultimately assigned to the Superior Courts of Justice, their decisions will also be subject to appeal and if so, before which court.
The government has also announced its intention to extend the use of arbitration to disputes arising between administrative authorities. It remains to be seen whether this extension will be included in the SAA or in a different Act.
Another bill refers to mediation and the intended implementation in Spain of Directive 2008/52/EC regarding civil and commercial mediation in cross-border disputes. This is particularly significant, as until now there has been no specific regulation on mediation under Spanish law. (For more information on the EU Mediation Directive, see Practice note, The EU Mediation Directive.)