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JAN 31 / 2019
One of the questions faced by the drafters of arbitration clauses is the question of where the arbitration should take place. It is necessary to find a place where no party is favored, which often means excluding the places of residence of the signatories. It also needs to be friendly with regard to arbitration. Spain is today an appropriate choice of this last point of view.
The explanatory memorandum of the Arbitration Law of Spain of December 23, 2003, amended in 2011 and 2015, openly indicates that the legislator has adopted regulations in accordance with the Model Law prepared by the United Nations Commission for International Trade Law. . of June 21, 1985, recommended by the General Assembly in its Resolution 40/72 of December 11, 1985, and also takes into consideration the successive work of said Commission to incorporate technical advances in order to meet the needs of the arbitration practice. Spain is part of the New York Conventions of June 10, 1958 and Geneva of April 21, 1961.
Therefore, Spanish legislation is in line with what is usual in most arbitration venues and professionals should not feel out of place in Spain.
The Spanish court is also willing to arbitrate. If an arbitration is carried out in Spain, the only possible recourse, the request for annulment of the award, must be presented before the Civil Chamber of the Superior Court of Justice of the Autonomous Community where the arbitration took place, competent jurisdiction. Arbitration composed of high ranking magistrates and who ultimately decides.
The procedure is fast. The appeal must be filed within two months after the notification of the award and can only be filed for the usual reasons: non-existence or nullity of the arbitration agreement; not to notify a party of the appointment of the arbitrator or of the procedure or the impossibility for it to assert its rights; the arbitrators pronounced on matters that were not before them; the appointment of the arbitrators or the procedure was not in accordance with the agreement of the parties or, in the absence of such agreement, with the law; non-arbitrable dispute; and the violation of public order. And the sentences are issued quickly: in March 2017, judgments were handed down on the judgments notified to the parties in July 2016. The decisions are easy to consult on the website of the Judiciary (www.poderjudicial.es/search/ indexAN JSP).
The judges are in favor of the validity of the sentences. For example, the jurisprudence says that "the concept of public policy can not become a false door to allow the decision of the arbitrators to be examined in the background, its content limits it to the basic political principles that allow the articulation of society , the norms or principles that integrate public morals and fundamental rights and public liberties guaranteed by the Constitution "(Judgment of the Superior Court of Justice of Madrid of 21 -4-2015).
The deadlines are also fast when the Superior Court of Justice must appoint an arbitrator in the place and place of the parties in default: the requests presented in November 2016 saw a decision issued in February and March of 2017. Or when the Spanish judge must Take action or help the parties obtain evidence.
The only obstacle to the speed of proceedings was the slowness of letters rogatory sent when a notification had to be made abroad: they were often lost in the meanders of foreign ministries and jurisdictions and took a long time to return. The Law on International Legal Cooperation in Civil Matters, of July 30, 2015, established a remedy for countries excluded from the regime of Regulation (EC) n ° 1393/2007: from now on, notifications can be made by direct request from jurisdiction to jurisdiction, including by certified mail sent to the recipient when the legislation of the country of destination does not conflict.
Finally, Spanish society is far from being reluctant to arbitration. The Spanish Arbitration Club, which brings together specialists in the field, is very active. The parties, the lawyers and the arbitrators can be sure of being well received, of having the help of the local arbitration institutions and of all the necessary support to find interpreters, stenographers, meeting rooms, etc.
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