A number of amendments which depart from the UNCITRAL Model Law (upon which the Spanish Arbitration Act 60/2003 is based) have been introduced to fine-tune the SAA and promote the use of arbitration:

The Act has also re-allocated most judicial competences to assist in arbitrations. These include the powers to set aside an award, the appointment of arbitrators and the recognition of foreign awards, which will all be dealt with in the Superior Courts of Justice of the Spanish Autonomous Region (Comunidad Autónoma), instead of in the First Instance Courts. This constitutes a movement towards coordination and specialisation of these competences as there are only 17 courts of this kind in Spain that will now concentrate on these competences. In addition, these courts have limited workloads in civil and commercial matters, which should, in theory, allow them to deal with these matters more quickly.

The Act includes an express reference to allow corporate disputes to be dealt with by arbitration, a possibility which was already unanimously admitted by Spanish case law. The Act provides that in order to include an arbitration agreement in the company's by-laws, the favourable vote of at least two thirds of the company's share capital is necessary. However, the Act introduces a limitation, in the sense that the challenge of corporate agreements cannot be submitted to ad hoc arbitration, and so can only be submitted to arbitration before an arbitral institution.

The Act introduces a new mechanism of arbitration for certain disputes arising between public bodies. When the dispute is considered as "relevant" (that is, due to the high number of claims that may ensue, or due to its monetary interest of at least EUR 300,000, or if one of the entities considers that it may be of essential relevance for the public interest), it has to be exclusively decided through this mechanism, to the exclusion of other jurisdictional or administrative actions.

The Act has also introduced some changes to other existing laws, such as the Spanish Civil Procedure Act and the Spanish Insolvency Act. The amendments to the former are minor and aimed at merely adjusting the text to the new drafting of the SAA.

However, the amendments to the Spanish Insolvency Act are more relevant. Until now, the Spanish Insolvency Act provided that arbitration agreements would become non-effective during pending insolvency proceedings and that only arbitration proceedings that had been initiated before the insolvency proceedings could continue until the issuing of the award. The new Act provides that arbitration agreements are not affected by the declaration of insolvency. However, the judge may suspend its effects if he considers that the arbitration agreement may jeopardise the progress of the insolvency proceedings. The Act also allows arbitrators to adopt interim measures that may affect an insolvent party, but are again subject to the judge's above power.

In summary, the amendments to the SAA passed by the Act are not as significant as initially foreseen at the launch of the draft bill. They appear to involve more of a fine-tuning of the SAA, although they include some departures from the UNCITRAL Model Law.

The main amendments to the SAA are the concentration of most judicial powers related to arbitration to the Superior Courts of Justice of the different Spanish Autonomous Regions, and the change of the relationship between arbitration and insolvency proceedings, which provides for a regulation closer to that of other neighbouring jurisdictions.

Source: Spanish Official Gazette, 21 May 2011.