The Arbitration Procedure and its Relationship with the Civil Process in Spain

Abstract

The study we propose is firstly aimed at studying the mechanics of the arbitration procedure in the Spanish State as an extrajudicial alternative for conflict resolution. To do this, we examine the relationship between arbitration and process.

The contrast is made between principles of the judicial process and the arbitration procedure, since the latter is built on the principle of autonomy of will, based on the specific renunciation of the right of jurisdictional protection. Which translates into the absence of guarantees inherent to the fundamental right to jurisdictional protection.

The particularities of the arbitration procedure are analyzed, which is not limited by the claim and the response, but can be expanded during the arbitration proceedings.

Special attention is paid to the limits of the arbitration procedure in relation to judicial assistance in matters of evidence, examining the specific difficulties for the practice and development of the different means of evidence.

Likewise, we analyze the autonomy of the jurisdiction to consider whether it has objective and territorial jurisdiction for such judicial assistance to arbitration, with the consequent impact if it is considered that it lacks jurisdiction for said judicial assistance, as well as the additional times for said collaboration of the jurisdiction, with the additional delays that it may entail for the arbitration procedure, given that there is no obligation for the courts of first instance to grant priority to arbitration assistance.

Finally, we reflect on the absence of rules on the burden of proof and the assessment of evidence in the arbitration procedure, which increases the power of the arbitrator vis-à-vis the judge.