SPAIN Law and Practice Contributed by: Daniel Jiménez García, SLJ Abogados
4. The Arbitral Tribunal 4.1 Limits on Selection Broad Autonomy
multiparty joint appointment fails, which is the safer route in practice.
4.3 Court Intervention A Supportive Function
Party autonomy is the governing principle, and the statutory limits are few. Article 12 requires an odd number of arbitrators, with a sole arbitrator in default of agreement. Article 13 provides that any natural person in full possession of civil rights may act as arbitrator, and Article 17 (1) requires independence and impartiality of every arbitrator, which cannot be waived. Qualification Requirements In arbitrations at law, Article 15.1 requires that a sole arbitrator be a jurist and that, in a three-member tri - bunal, at least one arbitrator be a jurist, unless the parties agree otherwise. Nationality is not a bar: Article 13 imposes no nationality requirement, and foreign arbitrators sit regularly in Madrid-seated cases. Equality in Multiparty Cases The principle of equality in the constitution of the tribu - nal, drawn from the Constitutional Court’s arbitration case law, operates as a further limit. An appointment mechanism that gives one side a structural advantage risks being set aside. 4.2 Default Procedures The Statutory Fallback Article 15 of the Arbitration Act supplies a default mechanism. For a sole arbitrator, the appointment is made by the competent High Court of Justice on the application of either party. For a three-member tribu - nal, each party appoints one arbitrator, and the two co-arbitrators appoint the president; if a party fails to appoint within 30 days of receiving the request, or if the co-arbitrators fail to agree within 30 days of the last acceptance, the appointment is made by the court. Multiparty Cases The Act does not set out a bespoke multiparty regime, so the court applies the general mechanism and its equality obligations when the parties on one side can - not agree. Institutional rules address the point more directly: CIIAM, CAM, CEA and CIMA rules all allow the institution to appoint the entire tribunal where a
The Civil and Criminal Chamber of the relevant High Court of Justice appoints arbitrators where the agreed mechanism fails. The procedure follows the verbal trial ( juicio verbal ) route and is designed to be quick. Limits on the Court’s Power The court’s role is deliberately narrow. Under Article 15 (5), it may only refuse the application where it finds, on the documents submitted, that no arbitration agree - ment exists. Where the parties have not agreed on the number of arbitrators, the court will appoint a sole arbitrator. 4.4 Challenge and Removal of Arbitrators Grounds Under Article 17 (3) of the Arbitration Act, an arbitrator may be challenged where circumstances give rise to justifiable doubts as to their impartiality or independ - ence, or where they lack the qualifications agreed by The parties are free to agree the procedure; fail - ing agreement, Article 18 requires the challenge to be raised within 15 days of becoming aware of the acceptance or the relevant circumstances, and the tri - bunal itself decides. Unusually by international stand - ards, the Spanish courts play no role in deciding a challenge – an unsuccessful challenge can only be revisited in set-aside proceedings against the award. Where an institution administers the case, its rules will govern, and the institution will decide. Removal An arbitrator who becomes unable to perform or fails to act without undue delay may resign or be removed by agreement of the parties under Article 19, with the court deciding in default of agreement. 4.5 Arbitrator Requirements Statutory Duty Article 17 of the Arbitration Act requires every arbi - trator to be and to remain independent and impartial the parties. Procedure
927 CHAMBERS.COM
Powered by FlippingBook