SPAIN Law and Practice Contributed by: Pablo Silván and Fernando Manzanedo, Ramón y Cajal Abogados, S.L.P.
• injunctions to prevent harmful actions; • security for costs; and • status quo preservation (eg, halting contract termi- nation or asset transfer). Spanish courts apply principles like fumus boni iuris (appearance of good law) and periculum in mora (risk that the award may be ineffective due to the length of the proceeding) when deciding whether to enforce such measures. If the arbitration is governed by ICSID or UNCITRAL rules, ICSID tribunals can order binding interim meas- ures under Article 47 of the ICSID Convention and UNCITRAL tribunals may grant interim relief under Article 26 of the UNCITRAL Arbitration Rules. Courts at the Spanish seat may assist in enforcement. Spanish law does not restrict the tribunal’s power to award interim relief in investor–state cases, provided the arbitration is seated in Spain or Spanish courts are involved in enforcement. 5.2 Role of Domestic Courts In investor–state arbitration, Spanish courts play a supportive but limited role when it comes to interim or preliminary relief. Their involvement depends on whether or not the arbitration is seated in Spain and whether or not the parties or tribunal require judicial assistance to enforce or secure such relief. Under Article 11.3 of Spain’s Arbitration Act (Law 60/2003), parties may request interim measures from Spanish courts before the arbitration begins or dur- ing the arbitration proceedings. Spanish law recog- nises that arbitral tribunals and courts have concur- rent powers to grant interim relief. However, tribunals cannot enforce their own interim orders without court assistance – especially if third parties or sovereign assets are involved. Spanish courts do not interfere with the merits of the arbitration, and their role is limited to procedural sup- port, such as enforcing interim measures. In ICSID or UNCITRAL arbitrations, ICSID tribunals can order binding interim measures under Article 47, but enforcement may require domestic court action if
assets in Spain are involved. UNCITRAL tribunals rely on the seat of arbitration for enforcement – so if Spain is the seat, Spanish courts may be asked to enforce interim orders. 5.3 Security for Costs Under the Spanish Arbitration Act (Law 60/2003) arbi- tral tribunals have the power to grant interim meas- ures, which may include security for costs. This power is recognised under Article 23, which allows tribunals to adopt any interim measure they deem necessary. 6. Third-Party Funding 6.1 Prevalence of Third-Party Funding Spanish Law permits third-party funding (TPF) of investor–state arbitration claims (although it is not specifically regulated, it is permitted under general principles of civil and commercial law as the Spanish Civil Code allows for the transfer of credit rights, which includes the right to proceeds from legal claims), and while it is not yet widespread, it is gaining traction, especially in high-stakes disputes involving energy and infrastructure. As of 2025, 16% of ICSID cases globally involve TPF – a figure that includes claims against Spain. The rise in unpaid awards and costly litigation has made Spain a hotspot for funders, especially in cases where investors seek compensation for regulatory changes in renewable energy. 6.2 Third-Party Funding Case Law In Spain, there is no specific regulatory framework governing TPF, which is covered by the principle of freedom of contract and freedom of agreement under Article 1255 of the Civil Code (Supreme Court Judg- ment, Contentious-Administrative Chamber, 53/2020, of 22 January 2020). Spanish Supreme Court jurisprudence has affirmed the legality of transferring credit rights, which includes rights to proceeds from legal claims. This forms the legal backbone for TPF arrangements under Article 1526 et seq of the Spanish Civil Code.
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