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In Spain, in addition to the private negotiation, which is usually one of the most important aspects of law practice, there is conciliation, which must be carried out before Labour Administration Mediation Services prior to labour litigation (link to labour court).
In civil courts, for proceedings involving amounts exceeding €3 000, there is a compulsory conciliation procedure subsequent to submitting the application and the response by the defence. This conciliation procedure is led by the judge, who is obliged to promote efforts to obtain an agreement. The court proceedings go ahead only if this does not succeed.
Conciliation is one of the functions assigned to Court Clerks in the terms laid down by procedural laws, involving mediation work specific to them. This function will not take effect until the entry into force of the Law on Voluntary Jurisdiction.
Arbitration involves replacing, with the agreement of the parties, the intervention and judgment of the courts by those of an arbitrator (a third party or arbitration tribunal). This comes under private law, although in recent years its institutional aspect is being developed by consumer affairs ministries and chambers of commerce.
Conciliation is regulated by the Code of Civil Procedure (for civil procedures) and by the Code of Labour Procedure (for labour procedures).
In civil matters, and until the Law on Voluntary Jurisdiction comes into force, conciliation is optional and cannot be imposed. Judges in Courts of First Instance and Justices of the Peace (non-professional judges) at the address of or, in the absence of this, at the place of residence of the defendant, are competent to hear conciliation proceedings. The conciliation document, containing the agreements between the parties, constitutes an enforceable instrument which can be used to initiate enforcement proceedings.
Arbitration is regulated by the Law on Arbitration, Law 60/2003 of 23 December 2003. This Law also applies to special arbitration mechanisms, the one most used in practice being arbitration in consumer affairs to solve disputes relating to the consumption of goods and services covered by Law 26/1984 of 19 July 1984 on General Consumer and User Protection.
Arbitration in Spain can be based on law or on equity. Generally speaking, arbitration solves disputes by applying the law in force, unless the parties have given express authorisation to solve the dispute solely on the basis of equity. This criterion of equity, in other words without applying the legislation in force, is the one used to underpin an arbitration decision in some institutional arbitration proceedings such as those relating to consumer affairs.
Choose from the list below the situation matching yours to find out whether you can have recourse to any of the alternative dispute resolution measures available:
There must be an agreement on arbitration which may take the form of a clause in a contract or which may be an independent agreement. It should state that the parties agree to submit to arbitration any or all of the disputes that may arise or have arisen with regard to a specific legal relationship, whether contractual or non-contractual.
The arbitration agreement should be set down in writing in a document signed by the parties or in an exchange of letters, telegrams, faxes or other means of telecommunication which permit a record of the agreement.
This requirement will be regarded as fulfilled if the arbitration agreement is recorded and accessible for subsequent consultation on an electronic, optical or other type of medium.
The arbitration agreement is deemed to be incorporated into the agreement between the parties if it is recorded in a document which the latter have remitted to each other in any of the forms mentioned in the previous paragraph.
In order to be regarded as valid, this agreement may not refer to matters which, by law, are excluded from arbitration.
No law or court decision can force people to have recourse to arbitration. Use of arbitration is voluntary for individuals.
In arbitration, the principles of equality, the right to be heard and adversarial proceedings must be respected. The arbitrator must treat the parties equally and give each one of them sufficient opportunity to assert their rights. He is also obliged to preserve the confidentiality of information brought to his attention in arbitration proceedings.
The parties may freely agree on the procedure, which the arbitrators then have to follow. If agreement cannot be reached on this, the arbitrator may, subject to the provisions of the Law on arbitration, direct the arbitration procedure as he thinks fit. This power by arbitrators includes the capacity to decide on admissibility, pertinence and usefulness of evidence, on the hearing of evidence, even at the initiative of the arbitrator, and on the weighing up of evidence.
Unless otherwise agreed by the parties, the arbitrator will decide whether hearings must be held to present arguments, hear evidence and enter pleadings, or whether this can be done exclusively in writing.
Unless otherwise agreed, both the arbitrators and the arbitration body may ask the parties to make advance payment of the funds they consider necessary to cover the fees and costs of the arbitrators and those that may arise during the procedure. Should the parties fail to make these advance payments, the arbitrators may suspend or conclude the arbitration procedures. If one of the parties has not made the payment within the deadline laid down, the arbitrators may, before declaring the termination or suspension of the procedure, communicate this fact to the other parties so that they can, if they so wish, pay on behalf of that party within a deadline laid down for this purpose.
Free legal aid is not provided for this type of arbitration.
The decision concerning the dispute awarded by the arbitrator is called the “laudo”. All arbitration awards must be set down in writing and signed by the arbitrators, who may express a diverging view. Where there is more than one arbitrator, the signatures of a majority of the members of the arbitration panel or simply of the chairman are sufficient. It is understood that the arbitration award is placed on record when there is a record of its content and of the signatures and this is accessible for subsequent consultation on an electronic, optical or other type of medium. The arbitrator must explain the reasons for his decision, in law or in equity. Subject to what is agreed by the parties, the arbitrators may in the award decide on arbitration costs, which include the fees and expenses of the arbitrators and, where appropriate, the fees and expenses of the legal counsel and representatives of the parties, the cost of the service provided by the arbitration body and other costs arising from the arbitration procedure.
If the arbitration award is not complied with voluntarily, enforcement proceedings can be initiated via the courts in line with the provisions in the Code of Civil Procedure (link to the factsheet on the enforcement of judgments).
In the event of disagreement on the obligatory nature of the arbitration award, the arbitration agreement will oblige the parties to comply with what is set down in the award and will prohibit courts from hearing disputes submitted to arbitration, should one of the parties concerned invoke the award during legal proceedings.
An arbitration agreement will not prevent any one of the parties from asking a court to adopt precautionary measures, or prevent a court from granting such measures, either prior to or during the arbitration procedure (link to interim measures and precautionary measures).
The arbitration award may be cancelled if one party applies for this, and alleges and proves that:
The cancellation proceedings must be brought before a provincial court; its decision may not be appealed.
With respect to separation and divorce procedures, the courts promote the resolution of the conflict by means of mutual agreement between the parties, given that proceedings initiated because of a confrontation between the parties can be settled on an amicable basis. The agreement, which must cover aspects relating to the guardianship and custody of children, arrangement of visits, contribution to the costs arising from the marriage and, where appropriate, maintenance and use of the residence which is the family home, is only approved by the courts when it is considered that it does not harm the interests of minors or of either member of the couple. The Public Prosecution Service intervenes when there are minors, and the courts may propose any amendments they consider advisable.
In some Autonomous Communities such as Catalonia, Valencia and the Basque Country, there are specific rules on family mediation.
Law 49/2003 of 26 November 2003 on leases for agricultural holdings has abolished the compulsory intervention of arbitration boards for agricultural holdings in certain disputes such as those relating to access to the tenant’s property. The parties may now submit matters freely to arbitration under the terms laid down in the legislation in force in this respect.
Last update: 30-07-2007