A few months ago I wrote a post
on this Blog about what I saw as “work left to do” in the Spanish
arbitration system. I started with the need to build a regional court of
arbitration on a par with those well-known centres in other
jurisdictions, with the fundamental aim of taking advantage of Spain’s
privileged position in the Latin American market.
I noted at the time that no Spanish arbitration institution has yet
managed to become a point of reference in international contracts, in
which clauses favouring seats of arbitration in other countries still
predominate, even when both parties are Spanish-speaking and come from
Central or South American countries.
That said, it is only fair to acknowledge that there is growing
awareness of this shortcoming and progress has been made. As an
indication of this, a short description of the main arbitration
institutions that exist in Spain seems a good place to start.
Spain has a few dozen courts of arbitration, most of which are under
the auspices of the eighty-eight chambers of commerce up and down the
country. However, the biggest centres are in the main cities and areas
of industry: Madrid, Barcelona, the Basque Country, Valencia and
Seville.
Madrid is the seat of the Madrid Arbitration Court (Corte de Arbitraje de la Cámara Oficial de Comercio e Industria de Madrid - CAM), the Spanish Arbitration Court (Corte Española de Arbitraje – CEA), the Civil and Commercial Arbitration Court (Corte Civil y Mercantil de Arbitraje
– CIMA) and the arbitration court of the Madrid bar association.
Barcelona has the Barcelona Arbitration Court (Tribunal Arbitral de
Barcelona – TAB) and so-called “Consulat de Mar”. For dispute resolution
in the Basque Country, arbitration is available from the court of the
Bilbao chamber of commerce, industry and shipping, the Basque
arbitration court and the Basque centre of mediation and arbitration of
the Álava chamber of commerce and industry. Valencia is home to the
European Court of Arbitration (Tribunal Arbitral de Valencia – TAV-ICAV)
and the Valencia court of arbitration and mediation, while Seville has
the court of arbitration of that city’s official chamber of commerce,
industry and shipping.
These may be the most important courts, yet most are largely focused
on domestic matters and lack the potential to become an international
centre of arbitration. That goal is left to the tribunals in Madrid and
Barcelona, which have the volume, resources, geographical position and
funding needed to take on that challenge.
However, it is clear that only one Spanish court of arbitration can
achieve its potential in the international arena, just as happened with
the London Court of International Arbitration in the United Kingdom, the
Arbitration Institute of the Stockholm Chamber of Commerce in Sweden,
the Cairo Regional Center of International Commercial Arbitration in
Egypt or the Singapore International Arbitration Centre (SIAC) in
South-East Asia, to name a few examples. The problem is not just that
achieving that position requires massive, sustained investment in people
and resources. It is also the case that the market tends to go for a
single arbitral institution for each region or economic area of
influence.
In Spain, the biggest push for international status at the moment is
coming from the Corte de Arbitraje in Madrid. Since its appointment of
the academic, lawyer and international arbitrator Miguel Ángel
Fernández-Ballesteros as chairman in April, this Madrid court has
launched a number of initiatives clearly aimed at making it the Spanish
point of call for the world of international business arbitration and,
in particular, Latin America.
The court had certainly already looked beyond Spain’s borders. As
well as processing a large number of cases with an international
component (38% of the total, according to its own figures), it has also
played its part in institutions like the United Nations Commission on
International Trade Law (UNCITRAL), International Federation for
Commercial Arbitration Institutions (IFCAI) and International Bar
Association (IBA).
Nonetheless, this new direction for the CAM is driving its ambitions
to become the arbitral institution of excellence in the region and the
point of reference for dispute resolution for companies in Europe and
Latin America. Note, for example, the collaboration agreements reached
with some of the leading local arbitral institutions in Latin America,
such as the Câmara de Comércio Brasil Canada (CCBC) and the Corte de
Arbitraje in Mexico, the results of energetic international promotion
of the CAM by its new chairman.
It seems clear that these kinds of initiatives are the best (if not
only) way of earning recognition for the institution from companies and
law firms in Latin America and for them to see it as a real regional
centre and a reliable and effective option for resolving any disputes.
Only then will clauses in their contracts refer to the Madrid court for
arbitration instead of the other available routes.
The road is long and we will take a long time to get there, of that
there is no doubt. However, the prize for the centre that comes out on
top is a big one and well worth the effort. International arbitration
cases are not for nothing a major source of business and revenue for the
institutions they come up before and their cities. Precisely for that
reason, it would not be surprising to see other Spanish courts of
arbitration shortly follow the CAM’s example. A real race to become the
international centre of arbitration for Latin America would then be on.
Source: KluwerArb
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