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Results: 4 Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
 
Spain
Rules for the appointment of the tribunal are set out in Article 15 of the Arbitration Act.

The general rule is that the parties are free to specify the number (which must be odd) of arbitrators or the person who will be appointed and his or her personal requirements (Article 15.1). In addition, they are free to entrust the administration of the arbitration and the appointment of arbitrators to public corporations empowered to exercise arbitral functions (according to their governing statutes) or not-for-profit entities (eg, associations, societies) whose objects entail the conduct of arbitration proceedings. In that case, arbitral institutions will exercise their functions in accordance with the rules approved by the corresponding entity (Article 15.2).

The parties are free to agree on the procedure for the appointment of the arbitrators, provided that there is no breach of the principle of equal treatment. Nonetheless, in the absence of an agreement on this, the following rules set forth in Article 15.2 will apply:

  • In an arbitration with a sole arbitrator, the arbitrator will be appointed by the competent court upon the request of any of the parties;
  • In an arbitration with three arbitrators, each party will nominate one arbitrator and the two arbitrators thus appointed will nominate the third arbitrator, who will act as the presiding arbitrator. If a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of the latest acceptance, the appointment will be made by the court at the request of a party.
  • When there are multiple claimants or respondents, one side will nominate one arbitrator and the other side another. If the claimants or the respondents cannot agree on their nomination, all arbitrators will be appointed by the competent court upon request of any of the parties.
  • In arbitrations with more than three arbitrators, all will be nominated by the competent court upon request of any of the parties.

If it is not possible to appoint the arbitrators through the procedure agreed by the parties, any party may apply to the competent court to nominate the arbitrators or, if appropriate, to adopt the necessary measures for this purpose (Article 15.3). The court may refuse this request if, on the basis of the documents submitted, it deems that no arbitration agreement exists (Article 15.5).

Where arbitrators are to be appointed by the court, it will produce a list of three candidates for each appointment. In producing this list, the court will have regard to any qualifications established by the parties and will take the measures necessary to guarantee the independence and impartiality of the arbitrators. In the case of the appointment of a sole or a third arbitrator, the court will also take into account the convenience of nominating an arbitrator of a nationality other than those of the parties and, where applicable, those of the arbitrators already appointed, in light of the prevailing circumstances. The arbitrators will subsequently be appointed by lot (Article 15.6).

There will be no appeal against final decisions in respect of matters attributed to the competent court (Article 15.7).

Pursuant to Article 16 of the Arbitration Act, once the arbitrators have been appointed, unless the parties have agreed otherwise, each arbitrator, within 15 days of the date of communication of the nomination, should communicate his or her acceptance to the party making the appointment. If such acceptance is not communicated within this timeframe, the arbitrator will be deemed not to have accepted the nomination.

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
Spain
Yes. The parties are free to determine the number of arbitrators, provided that such number is odd. In the absence of any agreement between the parties, only one arbitrator will be appointed (Article 12 of the Arbitration Act).

Unless otherwise agreed, in internal arbitrations other than those to be decided in equity, where the arbitration is to be decided by a sole arbitrator, this will be a lawyer in practice and acting as such. Where the arbitration is to be decided by three or more arbitrators, at least one of them must be a lawyer in practice and acting as such (Article 15.1 of the act).

In accordance with Article 13 of the Arbitrator Act, any persons in full possession of their civil rights may be arbitrators, unless prevented by the legislation to which they may be subject in the practice of their profession. Unless the parties have agreed otherwise, no one will be prevented by reason of nationality from acting as an arbitrator.

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
Spain
Yes. Pursuant to Article 17.1 of the Arbitration Act, an arbitrator may be challenged only where circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess qualifications agreed by the parties.

A party may challenge an arbitrator it has appointed, or in whose appointment it has participated, only for reasons of which it becomes aware after the appointment has been made (Article 17.2).

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.4
If a challenge is successful, how is the arbitrator replaced?
 
Spain
In accordance with Article 20.1 of the Arbitration Act, the replacement of a challenged arbitrator follows the rules that applied to the appointment of his or her predecessor.

Once the substitute arbitrator has been appointed and the parties have been heard, the arbitrators will decide whether proceedings conducted prior to substitution must be repeated (Article 20.2).

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
Spain
The most important duties imposed on arbitrators are those of independence and impartiality during the arbitration. In no case will an arbitrator be allowed to maintain any personal, professional or commercial relationship with any of the parties (Article 17.1 of the Arbitration Act). Pursuant to Article 17.2 of the act, a person proposed as arbitrator must disclose any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. From the time of their appointment, arbitrators must disclose without delay any such circumstances to the parties.

Arbitrators must also accept their appointments and must comply with their commission in good faith. If they fail to do so, they will be liable for any damages resulting from bad faith, recklessness or mens rea (Article 21.1 of the act).

In addition, arbitrators and arbitral institutions are bound to keep confidential any information that comes to their knowledge in the course of the arbitration proceedings (Article 24.2 of the act).

Finally, arbitrators or arbitral institutions on their behalf are bound to take liability insurance or equivalent security for the amount established in the rules. Public entities and arbitral systems integrated in or under the aegis of governmental authorities are exempt from this obligation (Article 21.2 of the act).

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
Spain
(a) Procedure, including evidence?

Pursuant to Article 25.2 of the Arbitration Act and if the parties do not agree on the procedure to be followed by the arbitrators in conducting the proceedings, the arbitrators may, subject to the provisions of that statute, conduct the arbitration in such manner as they deem appropriate. Such power includes that of determining the admissibility, relevance, materiality, taking (even ex officio) and evaluation of the evidence.

(b) Interim relief?

Unless the parties have agreed otherwise, the arbitrators may, at the request of any party, grant any interim measures deemed necessary in connection with the object of the dispute. The arbitrators may require the claimant to furnish sufficient security (Article 23.1 of the Arbitration Act). Decisions on interim relief will be treated as an award for the purpose of their enforcement and setting aside (Article 23.2 of the Arbitration Act).

Any interim measures are enforced by the court with jurisdiction in the place where the award is to be enforced or, failing that, by the court at the place where the measures are to carry legal consequences, as foreseen by Article 724 of the Civil Proceedings Act 2000 (Article 8.2 of the Arbitration Act).

(c) Parties which do not comply with its orders?

Pursuant to Article 31 of the Arbitration Act and unless otherwise agreed by the parties, if, in the absence of sufficient cause, in the arbitrators’ judgement:

  • the claimant fails to communicate its statement of claim within the time limit, the arbitrators will terminate the proceedings, unless the respondent expresses its intention to apply for relief or remedy;
  • the respondent fails to communicate its statement of defence within the time limit, the arbitrators will continue the proceedings without treating such failure in itself as an admission of the facts alleged by the claimant; or
  • any party fails to appear at a hearing or to produce evidence, the arbitrators may continue the proceedings and make the award on the evidence before them.

(d) Issuing partial final awards?

Unless the parties have agreed otherwise, the arbitrators will rule on the dispute in a single award or in as many partial awards as they deem appropriate (Article 37.1 of the Arbitration Act).

(e) The remedies it can grant in a final award?

The Arbitration Act does not rule on the sorts of remedies that can be granted in a final award. Nonetheless, bearing in mind the nature of arbitration and the function assigned to it, as an alternative to court proceedings and rulings, it is clear that the remedies that can be granted in a final award are no different from those that can be granted in a court ruling.

A final award can thus either or cumulatively:

  • order the defendant to pay a certain amount to the claimant and/or to do or not do something;
  • create, modify or extinguish a certain right or obligation; and
  • declare how a provision is to be interpreted or applied to certain facts involving certain parties at the request of a party, in terms that are binding on both parties.

(f) Interest?

The Arbitration Act contains no provisions on the sorts of interest that can be pursued or protected through arbitration, the rule being that all matters can be submitted to arbitration, with the exception of those that involve unrenounceable rights. Given that Article 37.1 of this statute grants the arbitrators the power to “rule on the dispute”, it must be understood that they also have the power to rule on the interests behind the dispute, provided that the dispute is arbitrable.

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
Spain
Depending on which party fails to participate in an arbitration, such failure will have the effects foreseen in Article 31 of the Arbitration Act. Under this provision, only if the claimant fails to serve its statement of claim will the arbitrators terminate the proceedings, and that only if the defendant does not express its intention to apply for relief or remedy. In other cases, the proceedings will continue or at least be allowed to continue at the discretion of the arbitrators.

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores
8.8
Are arbitrators immune from liability?
 
Spain
No. According to Article 21.1 of the Arbitration Act, arbitrators are liable for damage and losses they cause by reason of bad faith, recklessness or fraud. Where the arbitration is entrusted to an arbitral institution, the injured party will have a direct action against that institution, regardless of any actions for compensation against the arbitrators. In addition, also pursuant to such provision, arbitrators are requested to insure such liability for an amount of no less than that to be approved by an administrative regulation. The obligation to take this insurance is waived in the case of public entities and arbitral systems integrated in or under the aegis of governmental authorities.

For more information about this answer please contact: Pedro Moreira from SCA Legal Abogados and Consultores