Arbitration in Spain: An Overview

In Spain, parties can choose from a variety of arbitral institutions and rules. At the local level, the most common institutions are the Court of Arbitration of Madrid ("CAM"), the Civil and Commercial Court of Arbitration ("CIMA"), and the Spanish Court of Arbitration ("CEA"). For international arbitration, the International Chamber of Commerce ("ICC") and the International Centre of Arbitration of Madrid ("CIAM") are frequently chosen.

The SAA includes both mandatory and non-mandatory provisions. Mandatory provisions, which parties cannot contract out of, include the requirement for an arbitration agreement to be in writing, the impartiality and independence of arbitrators, the right to a fair hearing, and equal treatment of the parties. Non-mandatory provisions, which parties can modify or exclude by agreement, include the procedure for appointing arbitrators, the rules governing the conduct of the arbitration proceedings, and the place and language of arbitration.

In civil arbitration in Spain, the burden of proof primarily lies with the claimant, who must demonstrate the facts supporting their claim. However, the burden can shift if the respondent raises a counterclaim or an affirmative defence. The approach to disclosure in Spain is more limited compared to Common Law jurisdictions, with a focus on specific documents or evidence directly relevant to the case.

In Spain, the concept of "privilege" is covered by professional secrecy. Lawyers cannot disclose any confidential information or documents obtained during their professional activity, including communications and other documents exchanged with clients. Breaches of so-called professional secrecy can lead to criminal liability and sanctions from the Bar Association. 

Witness evidence is an important aspect of arbitration proceedings in Spain, but it is generally given less weight compared to documentary evidence. Witnesses typically provide oral testimony during the hearing, and written witness statements may be admitted depending on the procedural rules. Expert evidence is also crucial, with experts appointed either by the arbitral tribunal or by the parties. Expert reports must be submitted in writing and are presented during the arbitration hearing.

Spain is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which facilitates the enforcement of arbitral awards across borders. The process for enforcing an arbitral award in Spain involves requesting recognition through a written submission to the High Court of Justice of the Autonomous Community where enforcement is sought, followed by the exequatur procedure.

The SAA provides specific grounds for the annulment of arbitral awards, including the non-existence or invalidity of the arbitration agreement, lack of proper notification, decisions on matters not submitted to arbitration, and awards contrary to public order. While the right to appeal is generally reserved for ordinary jurisdiction, some arbitration institutions allow parties to include an appeal procedure in their arbitration agreement.