TODO LO QUE USTED QUERÍA SABER SOBRE EL ARBITRAJE | Gonzalo Jiménez Blanco
Iit’s odd: although we can remember the plot of some films in full detail, we don’t remember their titles, while on the other hand we completely forget the plot of other films and the only thing we remember is the title. That’s what happens with the film “Everything you wanted to know about sex (but were afraid to ask)”. I must have watched it more than 20 years ago, and although I still think that the title’s superb, I can’t remember the plot, although I can imagine it. It really didn’t have a plot, as it was a succession of sketches about the title’s subject.
I borrowed this title from Woody Allen to explain what arbitration is, avoiding as far as possible any overlap with other previously written and published articles: the one about 15 false ideas about arbitration and the one about the differences between arbitration and trials. The aim is to complete a previous essay in this section, in which the authors described the first timid modern steps towards common Law for humanity as a whole: the School of Salamanca and the Origins of Modern International Law. As no such law exists, the methods used to resolve disputes between individuals and legal entities have to take into account the range of applicable regulations and use different judicial or extrajudicial authorities. Arbitration stands out among the latter.
Today we will underline certain characteristics of arbitration without the need to compare it with judicial proceedings or any mistaken ideas. My aim here is to present arbitration in itself; its most important characteristics that have to be taken into account when forming a correct idea of the nature of this means of resolving disputes.
§ It is voluntary. Arbitration is only possible when both parties agree to use it. On the other hand, they have the right to obtain the effective legal protection guaranteed by article 24 of the Constitution and to go to the Courts of Justice.
§ Arbitrators are not civil servants and do not belong to
an official Body of arbitrators.
§ Arbitration is a private mechanism for administering justice, and arbitrators are neither judges nor belong to any state body. They are private individuals, usually lawyers.
§ Arbitration does not require the backing of any Court. Although a Court may be asked to administer arbitration (institutional arbitration) the arbitrators may be agreed directly without entrusting it to any institution whatsoever (ad hoc arbitration).
§ Arbitrators designated by the parties are also
independent and impartial.
Sometimes people talk about “our” arbitrator, and an arbitrator almost always acts as the representative of the party who named him (in these cases Americans talk about partisan arbitrators, rather than arbitrators named by the parties). However, as the Arbitration Law stipulates in its Exposition of Motives, all arbitrators, regardless of who named them, must be and remain independent and impartial.
§ Arbitrators may adopt precautionary measures. Although before the arbitration procedure begins they may request judges to adopt precautionary measures,
once arbitration has begun the arbitrators themselves can adopt such measures.
§ The procedure is completely flexible. The parties may freely agree on the procedure to be followed, without any limit other than those on the right to be heard and the principle of equality of arms.
§ If the litigious matter so requires it, proof hearings may last for several days. In arbitration it is extremely rare for proof to be denied, and very often hearings of several days are held so that witnesses and experts can be heard.
§ Arbitration proceedings in Spain are of limited duration. Although this is not necessarily the case in other countries, i n Spain the maximum duration of arbitration procedures is limited, unless the parties agree otherwise.
§ The decision that resolves litigation is equivalent to a judicial sentence and may be executed in the same way. As the Constitutional Court declared, arbitration is a jurisdictional equivalent, so that the decision which resolves arbitration is therefore equivalent to the sentence that resolves a trial. Nevertheless, to execute a decision it is necessary to go to the Courts of Justice.
These notes give us a more or less clear idea of the basic features of arbitration, features which we describe here to clarify any mistaken ideas we may have had about this means of resolving disputes.