SPAIN Law and Practice Contributed by: Pablo Silván and Fernando Manzanedo, Ramón y Cajal Abogados, S.L.P.
or recognition is involved. They cannot intervene in the merits of the dispute or tribunal composition once validly constituted. 4.4 Challenge and Removal of Arbitrators The applicable challenge procedure often depends on the rules chosen by the parties, such as the ICSID Convention or the UNCITRAL Rules. Spanish courts do not intervene in these international mechanisms unless the arbitration is seated in Spain and domestic law applies. The Spanish Arbitration Act contains provisions gov- erning the challenge and removal of arbitrators, and these can apply in ISA if the arbitration is seated in Spain or Spanish procedural law is otherwise relevant. Under Article 17 of the Arbitration Act, an arbitrator may be challenged on the following grounds.
Under the ICSID Convention, Article 14 (1) requires arbitrators to be persons of high moral character, with recognised competence and independent judgment. Challenges can be made if a party believes the arbitra- tor lacks these qualities. ICSID tribunals have consist- ently emphasised manifest lack of independence or impartiality as grounds for disqualification. Under UNCITRAL Arbitration Rules, Article 11 states that arbitrators must disclose any circumstances likely to give rise to justifiable doubts about their impartiality or independence. A party may challenge an arbitrator if such doubts exist. Arbitrators must update parties if new conflicts arise during proceedings. Failure to disclose relevant ties – even if they seem minor – can lead to challenges or annulment of awards. Even the appearance of bias can be enough to trigger a valid challenge. Many arbitrators follow the IBA Guidelines on Conflicts of Interest, which offer a structured approach to disclosure and challenge. In ISA seated in Spain, an arbitral tribunal is permitted to award preliminary or interim relief, and such relief is binding under Spanish law. Under Article 23 of the Spanish Arbitration Act (Law 60/2003) arbitral tribunals may grant interim meas- ures to preserve rights, prevent harm, or ensure the effectiveness of the final award. These measures are binding on the parties once granted. However, tribu- nals lack enforcement power – so parties may need to seek judicial assistance to enforce the relief. Spanish courts are empowered to support arbitration by enforcing interim measures, as clarified in Article 8.3 and 11.3 of the same Act. There is no exhaustive list, but common types of relief include: • freezing orders (eg, provisional attachment of assets); • orders to preserve evidence; 5. Preliminary and Interim Relief 5.1 Types of Relief
• Lack of independence or impartiality. • Failure to meet agreed qualifications. • Incapacity or inability to perform duties.
A party must submit the challenge within 15 days of becoming aware of the grounds. The challenge is first decided by the arbitral tribunal itself (excluding the challenged arbitrator). If the tribunal rejects the chal- lenge, the party may request the competent Spanish court to decide the matter. 4.5 Arbitrator Requirements The requirements for arbitrator independence, impar- tiality, and disclosure are foundational – and they are shaped both by Spanish national law and the rules of major arbitration institutions like ICSID and UNCI- TRAL. In accordance with Spanish national law, arbitra- tors must be independent and impartial throughout the proceedings. These are mandatory requirements under Article 17 of the Arbitration Act. Arbitrators must disclose any circumstances that may give rise to jus- tifiable doubts about their independence or impartial- ity. This includes prior relationships with parties or counsel, financial interests and affiliations with entities related to the dispute. Spanish courts have upheld these standards rigorously.
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