Answer ... The arbitration agreement must express the parties’ willingness to submit to arbitration all or some of the disputes arising between them in respect of a given legal relationship, whether contractual or otherwise (Article 9.1 of the Arbitration Act).
The arbitration agreement must be in writing, in a document signed by the parties or an exchange of letters, telegrams, telexes, faxes or other telecommunication methods that ensure a record of the agreement is kept (this requirement will be satisfied when the arbitration agreement appears and is accessible for subsequent consultation in an electronic, optical or any other type of format) (Articles 9.3 and 9.4).
In addition, the Arbitration Act accepts that there is an arbitration agreement when, in an exchange of statements of claim and defence, the existence of an arbitration agreement is alleged by one party and not denied by the other (Article 9.5).
In respect of international arbitration, the arbitration agreement will be valid and the dispute arbitrable if they meet the requirements laid down by any of the following:
- the rules chosen by the parties to govern the arbitration agreement;
- the rules applicable to the substance of the dispute; or
- the rules laid down in Spanish law (Article 9.6).
The Arbitration Act also provides for intra-enterprise arbitration agreements in Article 11bis. Under this provision, these agreements need to be included in the corporate by-laws by a two-thirds majority of the shares or stakes into which the share capital of the corporation is divided.
Answer ... Yes. At least for certain purposes (eg, validity of the arbitration agreement or any others whose acceptance would prevent consideration of the merits of the case), Article 22 of the Arbitration Act treats the arbitration agreement as independent. In this sense, if an arbitration clause forms part of a broader contract, it will be treated as an agreement independent of the other terms thereof. In addition, the arbitrators’ decision to the effect that the contract is null and void will not ipso iure void the arbitration clause itself.
Answer ... Yes. Article 26 of the Arbitration Act provides that if the parties have not agreed on the place of the arbitration, this will be determined by the arbitrators, having regard to the circumstances of the case and the convenience of the parties.
As to the language of the arbitration, Article 28.1 provides that if the parties have not agreed on the language or languages to be used in the proceedings, and this issue cannot be determined on the grounds of the circumstances of the case, arbitration will be conducted in any of the official languages of the place of the proceedings. Nonetheless, a party that alleges it is unfamiliar with such language will be entitled to participate in hearings, rebuttals and defence in its own language.