SPAIN Law and Practice Contributed by: Jose Piñeiro, Natàlia Ros and Laura Martín, Cases & Lacambra
5.6 Jurisdiction Over Third Parties Spanish law does not recognise the capacity of arbi - tral tribunals to uphold jurisdiction over persons or entities that are not parties to the arbitration agree - ment. However, there are certain cases in which it has been accepted that arbitration agreements may affect non- signatory parties if they have a close and strong rela - tionship with the signatories or play a relevant role in the execution of the contract submitted to arbitration. Article 23 of the SAA establishes that arbitrators may, at the request of a party, adopt the precautionary measures that they deem necessary in relation to the object of the proceedings. In such cases, arbitrators may require the claimant to furnish sufficient security. The SAA does not detail any specific interim measures and, therefore, arbitrators commonly apply by anal - ogy some of the measures listed in Article 727 of the Spanish Procedural Law (Act 1/2000, of 7 January 2000), such as preventive seizure of goods, judicial intervention or administration of productive goods, 6. Preliminary and Interim Relief 6.1 Types of Relief The competence to adopt precautionary measures in the framework of arbitration procedures vests in the arbitrators themselves. However, to achieve effective compliance, the collaboration of the courts is often necessary. Moreover, it is worth mentioning that the national courts can grant interim measures in aid of interna - tional arbitration in accordance with Article 722 (first paragraph) of the Spanish Procedural Law (Act 1/200, of 7 January 2000), which regulates interim measures in arbitration proceedings and foreign litigation. This provision determines that whoever can prove to be a party to an arbitration agreement may seek injunc - tions from the court prior to or during the arbitration proceedings. goods depository, etc. 6.2 Role of Courts
If the existence of the arbitration agreement can be clearly proved, the Spanish courts will refrain from intervening in the procedure. The SAA does not establish the option for Spanish courts to review negative decisions on jurisdiction by arbitral tribunals, although jurisdiction may be reviewed by means of an action for annulment of the award (Article 41, SAA). 5.3 Timing of Challenge The parties can only challenge the jurisdiction of an arbitral tribunal before the courts when an award has been issued (interim or final), since Article 22 of the SAA grants exclusive jurisdiction to the arbitrators to decide on their own jurisdiction. Therefore, the decision of the arbitrators on their own jurisdiction can only be challenged through the exer - cise of an action for annulment of the award, with - out prejudice to the fact that the parties could allege before the arbitral tribunal its lack of jurisdiction in their first writ of allegations. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility The Spanish courts will analyse the specific jurisdic - tion of the arbitral tribunal through a deferential review. 5.5 Breach of Arbitration Agreement In the event that a party files a claim when it should have initiated arbitration proceedings due to the exist - ence of an arbitration agreement, the court should act in accordance with the arbitration agreement unless it considers it to be invalid. It should also be noted that the parties may modify the submission made to arbitration by tacitly submit - ting the dispute to the courts. Thus, if a claim has been filed with a court despite the fact that the parties have agreed on an arbitration clause and the oppos - ing party replies to the claim without objecting to the jurisdiction of the tribunal within ten days, it will be understood that the parties have agreed to submit their dispute to the jurisdiction of that court.
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