SPAIN Law and Practice Contributed by: Daniel Jiménez García, SLJ Abogados
3.3 National Courts’ Approach Law Governing the Agreement
• an exchange of letters, emails or other electronic communications that provides a record of the agreement; • an arbitration clause incorporated by reference to general terms and conditions, provided the refer - ence makes the clause part of the contract; and • an exchange of statements of claim and defence in which one party asserts the agreement and the other does not deny it. Spanish case law, including Order 51/2019 of the High Court of Justice, confirms this permissive approach. 3.2 Arbitrability The Free Disposition Test Article 2 of the SAA provides that disputes over matters within the parties’ free disposition ( libre dis- posición ) may be arbitrated. That single test covers the great majority of civil and commercial disputes, and Spanish courts apply it generously. What Falls Outside Matters that cannot be freely disposed of are exclud - ed. In practice, this covers criminal liability, family sta - tus, the core of insolvency proceedings once opened, and matters reserved by statute to the courts or the administration. Consumer arbitration is subject to particular restrictions: pre-dispute arbitration clauses imposed on consumers are generally regarded as unfair, and consumer disputes are channelled through Corporate disputes, including challenges to share - holder and board resolutions, are arbitrable under Articles 11 bis and 11 ter of the Act, subject to the specific majority requirement for introducing an arbi - tration clause into the articles of association. Organic Law 1/2025 extended the same logic to professional partnerships, expressly allowing the constitutional documents of a professional company to refer dis - putes between partners, between partners and direc - tors, and between either and the company – including on withdrawal, exclusion and the liquidation share – to arbitration or another appropriate means of dispute resolution. Competition law disputes are arbitrable, though tribunals seated in Spain must apply EU com - petition rules where they are engaged. the public consumer arbitration system. Corporate and Professional Disputes
Spanish courts apply Article 9 (6) of the Arbitration Act, which adopts a validation principle: in internation - al arbitration, the arbitration agreement is valid and the dispute arbitrable if it satisfies the requirements of the law chosen by the parties, the law applicable to the substance of the dispute or Spanish law. This in favorem validitatis rule means Spanish courts rarely need to decide a conflict of laws question in order to uphold a clause. Enforcement of the Agreement Arbitration agreements are enforced as a matter of course. Under Article 11 of the Act, an arbitration agreement obliges the parties to comply with it and prevents the courts from hearing the dispute, provided the interested party raises the objection by way of declinatoria . The court must decline jurisdiction unless the agreement is null and void, inoperative or incapa - ble of being performed – a threshold Spanish courts interpret narrowly. Practical Point The declinatoria must be filed within the first ten days of the period for responding to the claim. Failure to do so amounts to a submission to the court’s jurisdiction, and the point cannot be revived later. Spain applies separability without qualification. Article 22 (1) of the Arbitration Act provides that an arbitra - tion agreement forming part of a contract is treated as an agreement independent of the other terms, and that a decision by the tribunal that the contract is null does not entail of itself the invalidity of the arbitration agreement. Consequences in Practice The clause therefore survives the termination, rescis - sion, novation or nullity of the main contract, and the tribunal retains jurisdiction to determine the conse - quences of that invalidity. Only a defect going to the arbitration agreement itself – for example, a want of consent specific to the clause – will defeat it. This is settled and uncontroversial before the Spanish courts. 3.4 Validity Separability
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