SPAIN Law and Practice Contributed by: Jose Piñeiro, Natàlia Ros and Laura Martín, Cases & Lacambra
will be valid if it meets the requirements stated by the law chosen by the parties to govern the arbitra - tion agreement, by the law governing the merits of the case or by Spanish law (Article 9.6, SAA). 3.2 Arbitrability Under Spanish law, the matters that cannot be sub - mitted to arbitration are matters excluded from the free disposition of the parties. These would be consid - ered non-arbitrable matters (Article 2.1, SAA). Moreo - ver, Article 1.4 of the SAA excludes labour disputes from the scope of the law and, in addition, there are matters excluded from arbitration for reasons of public order, such as disputes related to personal capacity or filiation. 3.3 National Courts’ Approach Regarding the determination of the law applicable to the arbitration agreement, the main rule is the freedom of choice of the parties. In international arbitration, if there is no choice, Article 9.6 of the SAA provides that the arbitration agreement will be valid if it meets the requirements stated by the law governing the merits of the case or by Spanish law. The Spanish courts follow this rule and do not inter - vene in those cases in which they lack jurisdiction unless expressly provided for by the SAA, as set forth in Article 7 of the SAA. In this regard, in cases where there is an arbitration agreement, the national courts will refrain from hearing the dispute and will accept the decision of the parties to submit to arbitration. Likewise, if there is an arbitration agreement between the parties, the opposing party may also allege the lack of jurisdiction of the court through a motion for lack of jurisdiction. 3.4 Validity If the contract in which the submission to arbitration clause is contained is invalid, the arbitration clause will not be affected by the invalidity. The arbitration clause is considered a separate legal stipulation from the main contract regardless of whether it is set as a clause within the contract itself or as a separate contract.
In this sense, the principle of competence-compe - tence is expressly recognised in Article 22 of the SAA. This principle states that arbitrators are empowered to decide on their own jurisdiction, including any plea related to the existence or validity of the arbitration agreement, or any other pleas, the acceptance of which would prevent the consideration of the merits of the case.
4. The Arbitral Tribunal 4.1 Limits on Selection
According to Article 15 of the SAA, in arbitrations of law, the only limit set to the parties’ autonomy is that at least one of the arbitrators must be an attorney. On the other hand, there is no such limitation in equity arbitrations, and there is no requirement that an arbi - trator be an attorney, not even in cases in which it is solved by a sole arbitrator. In addition, it should be noted that the arbitrators can - not be legal entities, and there is no maximum limit to the number of arbitrators as long as they are odd- numbered. 4.2 Default Procedures The parties are free to agree on a procedure to appoint the arbitrator(s); however, if the arbitrator(s) cannot be appointed under that procedure, any party may apply to the competent court to appoint the arbitrators or, as appropriate, to adopt the necessary measures. For those cases, Article 15 of the SAA establishes the following procedure to appoint the arbitrator(s): • In an arbitration with a sole arbitrator, they will be appointed by the competent judicial court at the request of any of the parties. • In an arbitration with three arbitrators, the parties will appoint one arbitrator each, and these two arbitrators will appoint the third arbitrator, who will be the chairperson of the arbitral tribunal. If a party fails to appoint the arbitrator within 30 days of the latest acceptance, the appointment will be made by the competent judicial court at the request of any of the parties.
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