Московский журнал международного права (May 2024)
Development of Institutional Arbitration in Spain
Abstract
INTRODUCTION. The development of the statutory regulation of institutional arbitration in Spain has been briefly outlined at the present study. The legal status of arbitral institution, the legal nature of its rights, obligations and liabilities have been examined. The role of arbitral institutions at the current arbitration situation in Spain has been briefly outlined.MATERIALS AND METHODS. The study has been based upon Spanish legislation, key judicial acts and works of Spanish and Latin American experts in the field. General scientific methods of knowledge – analysis, synthesis, induction and deduction – have been applied during the study. Special legal methods – formal-legal, technical-legal, the method of legal analogy, as well as the comparative legal method – have been also applied.RESEARCH RESULTS. The study demonstrates three factors which obstacle a full-scale development of institutional arbitration in Spain. The first factor is that the commercial arbitration itself has been a new phenomenon and it has been still unknown to the most of the Spanish population except a rather narrow community of professionals. As a consequence, the most of Spanish business community members put their best faith upon the judicial way of disputes resolution. As another consequence, confidentiality of proceedings and absence of appellation remedy have been treated rather as weaknesses than advantages of arbitration. The second factor is that there has been a deep-rooted point of view across Spanish business and lawyers communities that an arbitrator is rather legal representative of the party he has been appointed by. Which provokes reasonable doubts regarding independence and impartiality not only of an arbitrator, but an arbitral institution as well. The both factors outcome a low number of arbitrations in Spain and activate the third one. The third factor is a rather low level of competence of arbitrators and arbitral institutions staff due to the lack of practice. The study demonstrates significant efforts of the leading Spanish arbitral institutions in order to eliminate the factors.DISCUSSION AND CONCLUSIONS. The development of the statutory regulation of institutional arbitration in Spain has been briefly outlined. The legal status of arbitral institution, the legal nature of its rights, obligations and liabilities have been examined. The role of arbitral institutions at the current arbitration situation in Spain has been briefly outlined. Based upon the results of the study, the author comes to the conclusion that despite a significant progress in improving of legal regulation of institutional arbitration and the commercial arbitration as a whole, Spain has still quite a long way to go in order to create an efficient system of commercial arbitration and to become an attractive jurisdiction for international commercial arbitration as well.
Keywords
