SPAIN Law and Practice Contributed by: Jose Piñeiro, Natàlia Ros and Laura Martín, Cases & Lacambra
Regarding the possibility for a state or state entity to successfully raise a defence of state or sovereign immunity in the enforcement stage, Article 2.2 of the SAA prevents the possibility of a state opposing the prerogatives of its own law to breach the obligations contained in an arbitration agreement. Therefore, in 2015, Spain passed Act 16/2015, on State Immunity, which covers the content of the UN Convention on State Immunity (UNCSI) of 2004. In this regard, according to Article 16 of the UNCSI, there is an exception to jurisdictional immunity when there is an arbitration agreement relating to a commercial transaction between the state and a private individual from a different state. Thus, Article 17 of the UNCSI provides for the immuni - ty of the state from enforcement measures, as it allows enforcement proceedings against assets located in Spain and used for purposes other than official non- commercial ones. In turn, enforcement will be possi - ble when there is a tacit or explicit consent of the state by means of an international agreement, a written contract or a declaration within a judicial proceeding. 12.3 Approach of the Courts The case law of the Spanish courts in relation to the exequatur of foreign awards respects the autonomy of the will of the parties to submit their dispute to arbitration and, consequently, interprets the principle of public policy in a restrictive manner. Occasionally, there are some decisions that cause some controversy as to the scope and extent of the concept of public policy, but generally the exception - ality of its nature is recognised. 13. Miscellaneous 13.1 Class Action or Group Arbitration In Spain, the only dedicated regulation pertaining to class-action arbitration is the Royal Decree 231/2008, of 15 February 2008, which regulates the consumer arbitration system. In general, class action in arbitration is neither ruled out nor adequately covered by current legislation.
However, due to the specific characteristics of class actions, it is difficult to carry out an arbitration proce - dure without specific regulation of these procedures. In this sense, in class actions brought before the ordi - nary courts, Spanish law requires, for example, the publicity of the actions in order for the plaintiffs to join the proceeding and request their individual com - pensation. Regarding class actions before courts, the bill on rep - resentative actions for the protection of the collective interests of consumers is pending approval by the Spanish Parliament. This bill transposes the Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC. 13.2 Ethical Codes The Arbitration Law does not include ethical codes binding arbitrators and lawyers. Thus, the only require - ments are independence and impartiality. However, it is true that arbitrators and lawyers admitted to the bar are obliged to comply with the professional code and the ethical rules applicable to lawyers. Spanish practitioners are also aware of the guidelines accepted by the International Bar Association and the Spanish Arbitration Club, which include ethical rules. 13.3 Third-Party Funding Arbitration and national laws do not regulate third- party funding. However, there is also no regulation applicable to arbitration or civil procedure that pre - vents third-party funding. Regarding class actions filed before courts, the afore - mentioned Directive (EU) 2020/1828 regulates third- party funding and the draft of the Spanish Law on this matter also foresees third-party funding. The use of third-party funders in arbitration is com - monly accepted. However, the lack of regulation caus - es some doubts, for example, regarding the costs to be imposed in the award.
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