SPAIN Law and Practice Contributed by: Daniel Jiménez García, SLJ Abogados
Access to the Courts As a rule, a party cannot go to court to challenge juris - diction while the arbitration is pending. The routes to court are the declinatoria in parallel court proceedings and, after the award, the set-aside application. Fail - ure to preserve the objection before the tribunal will normally defeat a later set-aside application, and the Spanish courts apply that preclusion rule firmly. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility A Deferential Standard With Nuance Spanish courts adopt a deferential standard. Review is confined to the grounds listed in Article 41 and to the thema decidendi defined by the parties’ agree - ment; the court does not conduct a fresh examination of the facts or of the tribunal’s legal analysis. Where the Review Bites Harder The existence and validity of the arbitration agree - ment is the one area where the court’s review is more intrusive, because it goes to the foundation of the tribunal’s mandate. Even there, however, the courts will not reopen the tribunal’s factual findings, and the Constitutional Court’s case law has consistently warned against using public policy as a vehicle for merits review. 5.5 Breach of Arbitration Agreement The Declinatoria Where proceedings are commenced in breach of an arbitration agreement, the defendant must raise a declinatoria under Article 11 (1) of the Arbitration Act and Article 63 of the Civil Procedure Act. If it does so, the court must decline jurisdiction unless the agree - ment is null and void, inoperative or incapable of being performed. Spanish courts are unwilling to allow such proceedings to continue and routinely uphold the objection. No Sua Sponte Review The corollary is that the court will not act of its own motion. If the defendant does not raise the declinato- ria within the ten-day window, the court retains juris - diction, and the arbitration agreement is treated as waived for that dispute.
Anti-Suit Injunctions and Damages Anti-suit injunctions are not available from Spanish courts and would sit uneasily with EU law. Nor is there a developed practice of awarding damages for breach of an arbitration agreement. 5.6 Jurisdiction Over Third Parties Consent Remains the Basis The Arbitration Act contains no express provision extending the arbitration agreement to non-signato - ries, and the starting point is that consent is required. Spanish courts and tribunals have nonetheless accepted extension in defined circumstances where consent can be inferred or the party is bound in law. Recognised Routes The principal routes are: • assignment, subrogation and universal succes - sion, where the arbitration clause travels with the contract; • the group of companies doctrine, applied restric - tively and only where the non-signatory partici - pated actively in the negotiation, performance or termination of the contract; • agency and representation; • third-party beneficiaries who seek to rely on the contract; and • piercing the corporate veil, applied exceptionally and on a high evidentiary threshold. No distinction is drawn between domestic and for - eign third parties: the analysis turns on consent and conduct, not nationality. Tribunals seated in Spain approach extension cautiously, conscious that an over-broad finding is a natural target in set-aside pro - ceedings.
6. Preliminary and Interim Relief 6.1 Types of Relief Statutory Power
Article 23 of the Arbitration Act empowers the tribunal, unless the parties have agreed otherwise, to order any interim measures it considers necessary in respect of the subject matter of the dispute, and to require
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