the international comparative legal guide to litigation - dispute ...

The International Comparative Legal Guide to: 

Litigation & Dispute Resolution 2011 

A practical cross-border insight 

into litigation & dispute resolution 

Published by Global Legal Group, in association with 

CDR, with contributions from: 

Aivar Pilv Law Office 

Amir & Amir Law Associates 

Anderson Mori & Tomotsune 

Arntzen de Besche Advokatfirma AS 

Atai and Associates Law Offices 

Avbreht, Zajc & Partners, Ltd. 

Binder Grösswang Rechtsanwälte GmbH 

Bredin Prat 

Charles Adams Ritchie & Duckworth 

Debarliev, Dameski and Kelesoska Attorneys at Law 

Dechert LLP 

Dittmar & Indrenius 

Djingov, Gouginski, Kyutchukov & Velichkov 

DLA Piper 

Dr. K. Chrysostomides & Co LLC 

Gide Loyrette Nouel 

Gleiss Lutz 

Gómez-Acebo & Pombo Abogados, S.L.P. 

Guyer & Regules 

Hogan Lovells Studio Legale 

IndoJuris 

JMS Law Office 

Konečná & Šafář 

LAWIN 

M. & M. Bomchil 

MOLITOR Avocats à la Cour 

Mifsud & Mifsud Advocates 

Pachiu & Associates, Attorneys at Law 

Pinheiro Neto Advogados 

Portilla, Ruy-Diaz y Aguilar, S.C. 

Rodyk & Davidson LLP 

Schellenberg Wittmer 

SJ Berwin LLP 

Tilleke & Gibbins 

Vasil Kisil & Partners 

Williams & Connolly LLP 

Yukov, Khrenov & Partners 

Zaka & Kosta Attorneys at Law

Chapter 34 

Spain 

Diego Saavedra 


Cristina Stampa 

I. LITIGATION 

1 Preliminaries 

1.1 What type of legal system has Spain got? Are there any 

rules that govern civil procedure in Spain? 

Spain has a civil law system. The basic rule is the Spanish 

Constitution of 1978. Case law is paramount when it comes to 

interpreting legislation and in many cases comes to fill the legal 

loopholes. 

The main rule for the Spanish Judicial system is the Organic Act of 

Judicial Power No. 6/1985 (Ley Orgánica del Poder Judicial). The 

civil procedure is governed by the Civil Procedure Act No. 1/2000 

(Ley de Enjuiciamiento Civil), which became effective in January 

2001. 

1.2 How is the civil court system in Spain structured? What 

are the various levels of appeal and are there any 

specialist courts? 

Apart from the courts called Justice’s Courts (Juzgados de Paz), 

which deal with minor disputes (up to €90), the lower civil courts 

are the following: 

First Instance Courts (Juzgados de Primera Instancia), 

which hear all civil matters in first instance except for those 

reserved to the specialised courts. 

Commercial Courts (Juzgados de lo Mercantil), specialised 

courts to deal with insolvencies and disputes involving 

corporate affairs, unfair competition, Intellectual Property, 

Maritime and Transports Law, among others. 

The Provincial Courts (Audiencias Provinciales), in the capital of 

each Province, hear the appeals against lower courts’ decisions. 

The civil chambers of the Higher Courts of Justice (Tribunales 

Superiores de Justicia) deal with, in each of the regions of Spain, 

applications for review of the Provincial Courts’ decisions affecting 

their own regional civil law. The Civil Procedure Act (CPA) grants 

these Tribunals the power to hear, as well appeal against, the 

Provincial Courts’ decisions based on breach of process, but this 

requires an additional new regulation not yet enacted. Meanwhile, 

the Supreme Court hears these appeals. 

The civil chamber of the Supreme Court, located in Madrid, is 

the head of our civil judicial system. It hears the applications for 

review of the judgments issued by the Provincial Courts based on 

breach of law in certain narrow circumstances. 

The Constitutional Tribunal, located in Madrid, retains the 

highest power to interpret the Constitution. 

1.3 What are the main stages in civil proceedings in Spain? 

What is their underlying timeframe? 

The CPA establishes two main kinds of proceedings: Ordinary and 

Oral proceedings. Whereas the Ordinary proceeding covers the 

most common commercial disputes and those involving an amount 

above €6,000, the Oral proceeding is reserved for certain matters 

such as eviction and disputes involving a lesser amount. 

Roughly, the Ordinary procedure compromises the following 

stages: 

The claim, which is required to contain the full statement of 

claim. 

The court will examine its own jurisdiction and competence 

and order the service of the procedure on the defendant. This 

stage can last for some 2 months. 

The response must be filed by the defendant, as a full 

statement of defence, in the 20 days after the service of 

process. Nevertheless, the respondent may in the first 10 

days challenge the jurisdiction of the court, on which the 

court must decide after hearing the claimant. 

Pre-trial hearing, to which the court summons the parties 

upon receipt of the response, and usually takes place within 

the subsequent four to eight months. The main object of this 

hearing is, among others: (i) to decide on any procedural 

matters that would prevent the process from continuing; (ii) 

to determine the facts in discussion; and (iii) to decide on the 

parties’ proposal of evidence to be produced. 

Trial, on the date that has been fixed at the pre-trial hearing, 

usually takes place in the subsequent four to eight months. 

At the trial, witness and expert testimonies take place and the 

parties present their oral conclusions on the case. 

Sentence, which puts an end to the first instance. The CPA 

establishes that the judgment must be rendered 20 days after 

the trial, although in practice this period is extended to some 

two to four months depending on the workload of the court. 

The Oral proceeding is simpler than the Ordinary one. Once the 

claim is filed, the judge examines the procedural aspects and fixes 

the date for the trial. It then serves process to the defendant who 

produces his answer to the claim orally at the trial, where the 

witnesses and experts are examined. The judge should hand down 

its decision in the following 10 days. 

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© Published and reproduced with kind permission by Global Legal Group Ltd, London


Spain 

1.4 What is Spain’s local judiciary’s approach to exclusive 

jurisdiction clauses? 

Courts take a favourable approach to exclusive jurisdiction clauses 

and may of their own motion, as a matter of law and in certain 

circumstances, end proceedings when they lack jurisdiction in these 

fields or deny the enforcement when the court of origin has 

breached an exclusive jurisdiction clause. 

1.5 What are the costs of civil court proceedings in Spain. 

Who bears these costs? 

The parties’ main costs are the attorneys’ fees, the rights of the 

Procuradores (who act as agents before the court on behalf of a 

party), the experts’ fees and expenses and the judicial tax. 

The attorney and the client may agree freely on the fee structure, 

although each Bar Association publishes some orientations that are 

generally respected. The rights of the Procuradores are calculated 

in accordance to a fixed scale, based on the amount in dispute and 

the acts performed before the court. The judicial tax, where 

applicable, is a relatively small amount, and must generally be paid 

when filing a claim. 

Costs may be recoverable by the prevailing party if the Judge so 

decides in the judgment under certain rules. The judicial 

assessment normally does not cover all the costs incurred. 

1.6 Are there any particular rules about funding litigation in 

Spain? Are contingency fee/conditional fee arrangements 

permissible? What are the rules pertaining to security for 

costs? 

Our legal system guarantees that people without financial means 

obtain access to a lawyer paid by the State. However, this situation 

is rare in commercial disputes. 

“No win, no fee” arrangements are not allowed in the Bar rules, 

though the client and the lawyer may agree that part of the fees 

depend upon the result of the procedure. However, both the 

competition authorities and the Supreme Court recently questioned 

and ruled against this prohibition so now parties may, in principle, 

enter into a contingency fee agreement. 

There are no special rules on security for costs in the Spanish legal 

system, leaving the issue open to the general regime of interim 

relief. However, in practice, this sort of issue is rare. 

2 Before Commencing Proceedings 

2.1 Is there any particular formality with which you must 

comply before you initiate proceedings? 

different actions, and some of them are different depending on the 

regional law to apply. Corporate or certain commercial disputes 

also have their own statutes of limitation, some of which are 

extremely short. 

The term for general contractual claims is 15 years, whereas for tort 

claims it is 1 year. 

The start of the period depends on the kind of action, but a general 

rule is that it starts from the moment that it could be brought before 

the courts. Also, in civil law, time periods are counted in terms of 

natural days, i.e., they includes festivities and bank holidays. 

Time limits are treated as a substantive law issue in our legal 

system. The existence of a statute of limitation has to be alleged in 

the response, and should be decided upon in the final judgment. 

3 Commencing Proceedings 

3.1 How are civil proceedings commenced (issued and 

served) in Spain? What various means of service are 

there? What is the deemed date of service? How is 

service effected outside Spain? Is there a preferred 

method of service of foreign proceedings in Spain? 

Civil proceedings commence with a claim that must be filed by the 

claimant. This claim is a full statement of claim and must be filed 

together with all the documents in support thereof. 

The litis pendens exists as of the date of filing, provided the claim 

is thereafter admitted for procedure. 

Service is performed by court officers. In general, service is 

performed through personal service to the respondent. If the 

respondent is not found in the domicile provided by the claimant 

and no other domicile is known in the public records, service may 

be ultimately performed by the publication of notices in official 

State gazettes. 

The deemed date of service is that on which there is evidence that 

the personal delivery was made, or proof of the refusal by the 

defendant to receive the service, or the date on which the notice was 

published in official gazettes. 

For international service, Spain is a party to the 1965 Hague 

Convention on the Service Abroad of Judicial and Extra-judicial 

Documents in Civil and Commercial Matters. For service within 

EU countries, the EC Regulation 1,393/2007 on the service in the 

Member States of judicial and extrajudicial documents in civil or 

commercial matters applies. 

The preferred method of service is personal service, although any 

method regulated in these Conventions that allows for the 

determination of the content and date of delivery is valid, provided 

it is not incompatible with Spanish public policy. 

Spain 

There is no compulsory formality that parties have to follow before 

initiating proceedings. However, it is usual that they try to reach an 

amicable settlement before resorting to the courts. 

There are as well certain rules that allow a party to prepare a legal 

claim in cases where the identity of the respondent is ignored or 

where the exhibition of a document is essential to prepare the claim. 

2.2 What limitation periods apply to different classes of claim 

for the bringing of proceedings before your civil courts? 

How are they calculated? Are time limits treated as a 

substantive or procedural law issue? 

There are many different limitation periods in Spanish law for 


© Published and reproduced with kind permission by Global Legal Group Ltd, London 

3.2 Are any pre-action interim remedies available in Spain? 

How do you apply for them? What are the main criteria for 

obtaining these? 

The claimant may request interim measures before or at the time of 

starting proceedings. 

This is done through a statement of claim, which must include the 

relevant documents in support of the measures sought. The 

competent court may adopt the measures with or without an 

audience to the respondent. Interim relief is granted only in 

exceptional cases. 

The main criteria for granting the measures are: 

Periculum in mora (danger in delay): that is, that waiting 


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Spain 

Spain 

for the judgment without adopting the measure might 

provoke that the relief sought in the main proceeding will no 

longer be of any use to the claimant. 

Fumus boni iuris: a prima facie impression that the claimant 

has presented evidence that leads to the thought that the main 

action is likely to succeed in the future. 

Caution: the court only grants interim relief at the risk of the 

petitioner, and thereby requests that a sufficient caution is 

established to cover eventual damages if the main case is 

later dismissed or the interim relief is revoked. 

3.3 What are the main elements of the claimant’s pleadings? 

The statement of claim must include: 

The names and addresses of the parties. 

The facts of the dispute, and all the documents that prove 

such facts, provided the claimant had access to them. 

The legal grounds, whether they are laws, regulations or case 

law, on which the claimant bases the claim. 

The compliance with all the procedural requirements. 

The relief sought. If it consists of the payment of a sum, this 

must be clearly quantified. 

3.4 Can the pleadings be amended? If so, are there any 

restrictions? 

The object of a claim cannot be amended once it has been served on 

the other party and the response or counterclaim has been filed 

(pursuant to the prohibition of the mutatio libelli principle). 

Despite this, in view of the statement of defence, slight changes or 

complimentary arguments may be introduced in the pre-trial 

hearing (in the Ordinary proceeding) or in the hearing (in the Oral 

proceeding). However, the claimant cannot introduce new petitions 

at this stage unless the adverse party agrees or if the court rules that 

it doesn’t affect the right of defence of the defendant. 

4 Defending a Claim 

4.1 What are the main elements of a statement of defence? 

Can the defendant bring counterclaims/claim or defence 

of set-off? 

The defendant must include in the statement: 

What facts of the claim are acknowledged or denied. 

The defendant’s own version of the facts and the documents 

in support of such version. 

What decision it understands the court should issue, 

generally the absolution of the defendant. 

The defendant can bring a counterclaim, but only if it can be 

decided in the same kind of proceeding and before the same type of 

court that is handling the main claim. The counterclaim can be 

directed against other parties as well. 

The defendant may also bring a defence of set-off, even if it only 

seeks its own absolution. 

In these cases the claimant, as well as the rest of the parties against 

whom the counterclaim is directed, may file a statement of defence 

in 20 working days from the day of service. 

4.2 What is the time limit within which the statement of 

defence has to be served? 

The defendant must file the statement of defence at court 20 

working days after the service of process. 

4.3 Is there a mechanism in your civil justice system whereby 

a defendant can pass on liability by bringing an action 

against a third party? 

The defendant may, in the same period available to file its statement 

of defence, ask for another party to take part as defendant. If the 

court admits the petition of the defendant after hearing the claimant, 

the statement of claim will be served on the new defendant. Once 

this new defendant has filed its statement of defence, the original 

defendant might ask that the latter is put in its place as a sole 

defendant. The claimant and the new defendant will be heard, and 

then the court will decide. 

4.4 What happens if the defendant does not defend the 

claim? 

If the defendant does not file the statement of defence within the given 

period, the court will declare the default of appearance and the process 

will continue without its participation. This will not be deemed as 

surrender or an acknowledgment of the facts, and the claimant will 

still have the burden to prove the facts on which its claim relies. 

The declaration of default of appearance must be served on the 

defendant, announcing that no other act will be served except the 

final judgment. 

4.5 Can the defendant dispute the court’s jurisdiction? 

The defendant may challenge the court’s territorial jurisdiction (the 

competent courts are located in another place) or its material 

jurisdiction (the competent courts are other due to the matter in 

dispute). The defendant may challenge the court’s jurisdiction if 

there is an arbitration clause. 

The challenge must be filed within 10 days of the service of process 

and has the effect of staying the procedure until the court issues a 

decision. 

5 Joinder & Consolidation 

5.1 Is there a mechanism in your civil justice system whereby 

a third party can be joined into ongoing proceedings in 

appropriate circumstances? If so, what are those 

circumstances? 

Apart from what has been explained in question 4.3, a party that 

considers having a legitimate interest in the result of the proceeding 

may file a petition to join the proceeding either as a claimant or 

defendant. The court will decide after hearing the rest of the parties. 

If the court allows the new party to join the proceeding, the joinder 

may only do what the CPA allows as of the moment it joined the 

proceeding, i.e., the proceeding will not be taken back. 

5.2 Does your civil justice system allow for the consolidation 

of two sets of proceedings in appropriate circumstances? 

If so, what are those circumstances? 

Pursuant to the CPA, the parties may request the consolidation of 

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Spain 

two different proceedings if they are closely linked, in such a way 

that the decision on one of them might have pre-trial effects on the 

other one or if the decisions in both proceedings could be 

contradictory or incompatible. The petition of consolidation must 

be filed before the court that is hearing the most ancient proceeding 

and said court will be competent to hear the consolidated 

proceeding. 

For a court to allow this consolidation, both claims must be 

followed in the first instance, and under the same type of 

proceeding (Ordinary or Oral). 

5.3 Do you have split trials/bifurcation of proceedings? 

If the claimant has consolidated two or more actions in its initial 

claim in a case in which the consolidation was not permitted by law, 

the court will grant a term to correct this before resuming the 

proceedings or will terminate the process. 

The defendant may as well oppose in its statement of defence that 

the actions have been wrongly consolidated, in which case the court 

will decide in the pre-trial hearing (in the Ordinary procedure) or in 

the hearing (in the Oral procedure) which action or actions can 

continue in the proceedings. 

6 Duties & Powers of the Courts 

6.1 Is there any particular case allocation system before the 

civil courts in Spain? How are cases allocated? 

Yes, the Superior Council of the Judicial Power publishes the 

Allocation Rules for the different courts and Tribunals to ensure the 

correct assignment of the cases and the fair distribution of the 

workload. 

Generally, the cases are distributed to the different courts by the 

Dean Court of each judicial unit, in accordance to such rules. The 

rules generally set forth the allocation depending on the subject 

matter and the type of procedure, and distribute the cases by the 

order of entry at the Registry. 

6.2 Do the courts in Spain have any particular case 

management powers? What interim applications can the 

parties make? What are the cost consequences? 

No. The general principle is that parties have the disposition over 

the object of the procedure, and may renounce, withdraw, surrender 

or transact on the object of the case, always within the limits set 

forth by the CPA. Parties may also jointly suspend the course of the 

procedure. Courts cannot overrule or decide out of the scope 

defined by the parties. 

Outside this faculty of the parties, the courts must respect the rules 

of process established in the CPA. 

Parties are free to request interim relief before or during the course 

of the procedure, as well as measures to secure and anticipate 

evidence in certain circumstances. 

Each incident, request for interim relief or otherwise separate 

petition may be subject to separate orders to bear costs. 

6.3 What sanctions are the courts in Spain empowered to 

impose on a party that disobeys the court’s orders or 

directions? 

A court may order a party to pay a fine of up to €6,000 if it finds 

that it has acted against the rules of good faith in the scope of the 

procedure. A court may also inform the Bar Association in case an 

attorney’s action may be the object of a disciplinary sanction. 

The CPA also contains specific consequences for disobedience in 

other stages of the process, such as, for example, certain orders 

during the enforcement phase. 

6.4 Do the courts in Spain have the power to strike out part of 

a statement of case? If so, in what circumstances? 

No. The court must decide each case based on the facts, evidence 

and petition of the parties. However, courts may exceptionally 

reject a petition that is produced with manifest abuse of right, 

although this power is seldom used. 

6.5 Can the civil courts in Spain enter summary judgment? 

No, in case of the default of appearance of the respondent, the 

procedure will continue and the court will still require the claimant 

to provide sufficient evidence in support of its position. 

However, there is a specific procedure for debt recovery that is 

monetary, due and exigible in a maximum amount of €250,000. In 

this procedure (proceso monitorio), the court may issue a default 

judgment based on the default of appearance of the debtor, provided 

certain requirements are met. 

For cases in which at least one of the parties is domiciled or 

habitually resident in a Member State other than the Member State 

of the competent court, and with no maximum amount, parties may 

ask for a European order for payment to be issued, pursuant to the 

EC Regulation 1896/2006 creating a European order for payment 

procedure. If the Judge declares the default of appearance of the 

debtor, it will immediately declare such European order for 

payment enforceable as well. 

Also, a court may issue a partial order on certain points of the claim 

if parties have so agreed or if the respondent has partially 

surrendered to the claim. 

6.6 Do the courts in Spain have any powers to discontinue or 

stay the proceedings? If so, in what circumstances? 

No, unless the parties have so requested jointly. 

7 Disclosure 

7.1 What are the basic rules of disclosure in civil proceedings 

in Spain? Are there any classes of documents that do not 

require disclosure? 

There is no such procedure in Spain as the disclosure of the 

common law system. 

In Spain, parties are only obliged to produce the documents that are 

in support of their positions. 

However, any party may request the other to produce a determined 

document, provided it can produce a copy thereof or an indication 

as exact as possible of the said document. The unjustified inability 

to produce such document allows the court to either deem as 

evidence the copy or indications thereof or to issue an order 

compelling the party to produce the required document. 

Spain 




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Spain 

Spain 

7.2 What are the rules on privilege in civil proceedings in 

Spain? 

There are no specific rules on privilege; this has to be determined 

on a case-by-case basis. The in-house counsel, however, enjoys a 

privilege based on the Bar Association Rules. 

7.3 What are the rules in Spain with respect to disclosure by 

third parties? 

A court may only order a third party to disclose a document if it is 

transcendental to the purpose of issuing the judgment. The court 

will decide on this at the petition of a party, upon hearing the 

affected third party. 

The public entities have the obligation to disclose a document upon 

the request of a court unless such document is declared or classified 

as reserved or a secret. 

7.4 What is the court’s role in disclosure in civil proceedings 

in Spain? 

The court has to decide, upon the petition of a party, whether the 

disclosure of a document is accepted or not and whether it issues an 

order for a party to disclose the document or not. 

Reproduction of words, sounds or images. 

8.3 Are there any particular rules regarding the calling of 

witnesses of fact? The making of witness statements or 

depositions? 

Witness testimonies take place orally before the court at the trial. 

Case law has established that witness statements are not receivable 

as witness testimonies because they do not allow the crossexamination 

of the witnesses. Witness depositions are not available 

in Spain. However, under certain circumstances, a witness may 

exceptionally declare before a different court. 

8.4 What is the court’s role in the parties’ provision of 

evidence in civil proceedings in Spain? 

Courts must decide on whether the means of evidence proposed by 

the parties are relevant for the case and are thereby accepted. If 

rejected, the evidence is not produced in the procedure. In this case, 

the affected party may reiterate its request to produce the evidence 

in its appeal against the final judgment. 

Courts may not request the production of any means of evidence of 

its own motion and must decide on the case based solely on the 

evidence actually produced in the procedure by the parties. 

7.5 Are there any restrictions on the use of documents 

obtained by disclosure in Spain? 

The CPA does not contain any restriction or limitation to the use of 

a document obtained from a judicial process. 

8 Evidence 

8.1 What are the basic rules of evidence in Spain? 

The claimant must produce any documents in support of its position 

together with the initial complaint. It will not be able to produce 

further documents at a later stage (this has some exceptions). 

Expert reports must also be enclosed with or announced in the 

initial written submissions. 

Any other means of evidence is proposed by the parties and 

accepted or rejected by the court at the pre-trial hearing, the main 

object of which is the determination of the evidence that will be 

produced at the trial or in the procedure. 

Parties must propose the witness testimonies that they will rely on 

at the trial, and do not have to provide any witness statement 

beforehand. 

9 Judgments & Orders 

9.1 What different types of judgments and orders are the civil 

courts in Spain empowered to issue and in what 

circumstances? 

There are different types of judicial orders, depending on the matter 

subject to their decision. 

Namely: the Diligencias de Ordenación, issued by the Judicial 

Secretaries, are used to give the procedural impulse established by 

the law; the Decretos rule on matters that require the Judicial 

Secretaries’ decisions containing legal grounds; the Providencias 

are used to rule on procedural matters that require a judicial 

decision; the Autos, which are required to contain their legal 

grounds, resolve, among others, issues that would mark the end of 

the judicial instance; and the judgments (Sentencias) which put an 

end to the procedure and are used to decide on the merits of the 

case. 

Courts can issue declaratory or condemnatory judgments. The 

former is used to declare the existence of a right, a fact or a conduct, 

which the respondent must abide with; the latter is used to order a 

party to do something, to refrain from doing something or pay a 

certain amount. 

8.2 What types of evidence are admissible, which ones are 

not? What about expert evidence in particular? 

9.2 What powers do your local courts have to make rulings 

on damages/interests/costs of the litigation? 

258 

The CPA establishes that the available means of evidence are the 

following, each with specific regulation: 

Interrogation of parties. 

Public documents (i.e., authorised by a Notary Public or 

competent public officer, with the formalities required by the 

law). 

Private documents. 

Expert reports. 

Judicial inspection of a place, object or person. 

Witness testimony. 

Courts require a party to provide evidence of the real damage 

suffered, thereby limiting the remedy to a merely compensatory 

scheme. Punitive damages may not be sought. 

The CPA requires that a judgment must contain the exact amount 

that a party must pay or a very clear basis for its calculation which 

must consist on a basic arithmetic operation to be performed in the 

enforcement phase. 

Any judgment which orders a party to pay a determined amount 

will accrue, as a matter of law, a legal interest since the date it is 

rendered. Also, a party may seek to recover the interests overdue 





Spain 

since the date of the obligation to pay. 

As for costs, judgments usually decide which party bears the costs 

of the procedure or whether each party bears its own. The general 

rule is that the prevailing party may recover its costs from the other. 

The judgment will not contain any amount for this, so parties must 

either agree to the amount or obtain a judicial assessment. 

The costs of the Procurador are calculated based on a fixed scale. 

Also, the fees of the attorney are calculated, to this effect, based on 

the scale of the Bar Association. Although the Bar rules are only an 

orientation, it is general practice to respect the amounts determined 

therein. 

9.3 How can a domestic/foreign judgment be enforced? 

within 5 days of its service. Thereafter, it must file the grounds for 

the appeal within 20 days of the court admitting the appeal. The 

respondent will then have 10 days to challenge the appeal. This 

process is performed before the same court that has ruled the 

judgment, although the competence to decide on the appeal is 

attributed to the corresponding Provincial Courts (Audiencia 

Provincial), which may perform a full review of the case. 

The judgments rendered by the Provincial Courts may in turn be 

appealed before the Supreme Court or the Regional Higher Courts 

of Justice, depending on the grounds of the appeal. These grounds 

are limited and narrow and are determined by the CPA. 

II. DISPUTE RESOLUTION 

Spain 

A domestic judgment may be enforced following the enforcement 

procedure established by the CPA. This procedure is initiated by a 

legal claim to enforce the judgment, which is filed before the court 

that has issued the judgment. In monetary cases, the court may 

seize the assets of the defendant listed in the claim and may order 

different means of investigation of the defendant’s assets. The CPA 

contains a full set of rules for the realisation of the seized assets, 

which is performed in the scope of the enforcement process. 

The process to enforce foreign judgments depends on the State of 

origin issuing the judgment. 

A judgment issued by an EU Member State will be enforced in 

Spain in accordance to Article 32 et seq. of the EC Regulation 

44/2001. This regulation sets forth that a judgment shall be 

declared enforceable directly. The defendant may only oppose the 

enforcement based on the grounds established in Articles 34 and 35 

thereof. For uncontested claims, the EC Regulation 805/2004 

creating a European Enforcement Order for uncontested claims 

applies. 

Outside the EU, in the absence of an international treaty and when 

no clear reciprocity policy has been established, the recognition and 

enforcement of foreign judgments is possible in Spain in 

accordance with the following requisites provided in Article 951 et 

seq. of the Civil Procedure Act of 1881, partially still in force: 

(i) the foreign judgment must be the result of a personal action. 

This means that a judgment ruled over a matter of Spanish 

courts’ exclusive jurisdiction will not be enforced (e.g., 

actions in rem; actions re. validity of entries in public 

registries, etc.); 

(ii) the foreign judgment must be the result of a process without 

breach of the defendant’s rights to a defence. This requisite 

is normally examined by the court if the judgment has been 

issued in default of the defendant. The court examines 

procedural aspects such as whether the defendant was 

properly served of the process, whether it had been able to 

defend itself, whether the judgment was motivated and in 

accordance with the object of the claim and whether the court 

of origin had jurisdiction; 

(iii) the recognition and enforcement must not be contrary to the 

Public Policy. This is a broad concept, as it refers to the basic 

principles of Spain (most of them, fundamental 

constitutional rights); and 

(iv) 

the judgment must not be incompatible with another 

previous judgment issued or recognised in Spain (res 

judicata), or with an existing process pending in Spain the 

eventual judgment of which could be incompatible. 

9.4 What are the rules of appeal against a judgment of a civil 

court of Spain? 

An appellant must announce its intention to appeal a judgment 

1 Preliminaries 



1.1 What methods of dispute resolution are available and 

frequently used in Spain? 

Arbitration/Mediation/Tribunals/Ombudsman? (Please 

provide a brief overview of each available method.) 

The one practical alternative to judicial litigation is arbitration. 

Arbitration is increasingly being used in Spain for commercial 

disputes, provided parties had agreed to submit their dispute to this 

method. The awards are largely accepted and enforceable, and the 

Tribunals are accustomed to provide the assistance set forth by the 

law. 

Tribunals will refuse to hear a case if a party files a motion to 

dismiss based on a valid arbitration clause. Also, Tribunals will 

assist parties in the judicial appointment of arbitrators where 

needed, in the obtaining of evidence and in the issuing of interim 

relief. 

The awards may be the object of an action of annulment before the 

Provincial Court (Audiencia Provincial) of the place where it was 

issued, based on certain narrow grounds determined by the law. 

Mediation, although known and acknowledged as a means of 

obtaining an enforceable settlement agreement, is still not 

commonly used in Spain. As in arbitration, it requires an agreement 

of the parties to enter into this mechanism. However, it is rare to 

find a mediation clause in the contracts between local companies. 

Also, the old CPA of 1881 is still in force with regards to the part 

which regulates the conciliation. The conciliation act purports to 

obtain an enforceable agreement contained in a judicial document, 

although in practice it is seldom used because it requires from a 

party a voluntary acknowledgment of an obligation before the 

Judge. 

The law does not grant any powers to the courts to order the parties 

to try mediation or any other alternative dispute resolution 

mechanism (the labour jurisdiction is an exception, as it requires the 

attendance at a compulsory conciliation procedure previous to the 

judicial solution). 

1.2 What are the laws or rules governing the different 

methods of dispute resolution? 

Arbitration is governed by the Arbitration Act No. 60/2003, of 23 

December (Ley de Arbitraje). This Arbitration Act is based on the 

UNCITRAL Model Law, and applies to all arbitrations that take 

place in Spain, both national and international, without prejudice to 

other laws containing regulation on specific arbitrations such as 

consumer protection and intellectual property. 


259


Spain 

Spain 

There are also several references to arbitration contained in the 

CPA. 

Spain is a party to the New York Convention of 1958 and, as such, 

will enforce foreign awards in accordance thereto. 

Finally, arbitrations in certain institutions are governed by their own 

procedural rules to which parties are subject if they have submitted 

their dispute to one of those institutions. 

1.3 Are there any areas of law in Spain that cannot use 

arbitration/mediation/tribunals/Ombudsman as a means of 

dispute resolution? 

The Arbitration Act establishes that parties may submit to 

arbitration any dispute on a matter that is of free disposal according 

to the law. 

This generic enunciation avoids mentioning which matters may not 

be the object of arbitration. This is important, as any award that 

rules on a subject matter that may not be the object of arbitration 

may be declared void. 

Very roughly, there are certain criteria that may determine that a 

matter is not of free disposal to the parties: 

Any matter related to the marital status of a person, capacity, 

affiliation, matrimony or other matters related to minors or 

others in which the Public Prosecutor must intervene. 

Any matter that cannot be the object of a contract because it 

is related to things that are not in the commerce of men. 

Any matter that does not affect exclusively the parties in the 

arbitration and may affect third parties or the public interest. 

2 Dispute Resolution Institutions 

2.1 What are the major dispute resolution institutions in 

Spain? 

The major local institutions for commercial arbitrations are: 

Corte de Arbitraje, of the Official Chamber of Commerce 

and Industry of Madrid. 

Corte Civil y Mercantil de Arbitraje (CIMA). 

Corte de Arbitraje of the Bar Association of Madrid. 

Corte Española de Arbitraje, of the Superior Council of 

Chambers of Commerce, Industry and Navigation. 

Tribunal Arbitral de Barcelona. 

2.2 Do any of the mentioned dispute resolution mechanisms 

provide binding and enforceable solutions? 

Awards issued in the scope of a valid arbitration procedure are fully 

binding and enforceable under the CPA and under the New York 

Convention or under the Arbitration Act. 

Any settlement agreement reached as a result of mediation is as 

valid and enforceable as a contract entered into by the parties. 

Domestic arbitration, however, follows a different path, as there is 

not such a culture of arbitration which exists in the Anglo-Saxon 

countries. Nevertheless, several private associations and the 

Ministry of Justice together with the Superior Council of the 

Judicial Power are undergoing an extensive programme for the 

development of arbitration in Spain. 

One of the fruits of this development is the Bill approved on 19 

February 2010 to reform the current Arbitration Act. This reform, 

once enacted, will have as its object modernising and reinforcing 

greater use of arbitration in Spain. 

Concerning mediation, there are current legislative initiatives to 

introduce the use of mediation, still a step behind from arbitration 

in Spain as a method to solve disputes. 

3.2 Please provide, in no more than 300 words, a summary of 

any current issues or proceedings affecting the use of 

those dispute resolution methods in Spain? 

Over the past years there has been an increasing trend in the use of 

arbitration. There are multiple reasons for this, among which we 

must underline its speed and quality. 

First, an arbitration case is decided upon in a much more expedite 

manner than a judicial one. Second, arbitrators have expertise and 

knowledge in certain business areas and industries, as well as in 

law, and may render a more qualified decision on a determined 

dispute. Also, the procedural aspects of an arbitration process allow 

for a more flexible process in which the evidence is produced and 

examined in more detail and with a more proactive participation of 

the arbitrators. 

This positive trend is not only shown in the increasing number of 

arbitration cases but also to the fact that more and more significant 

cases are brought before arbitrators. 

As a result of this trend, a Bill to reform the current Arbitration Act 

has been approved on 19 February 2010 to develop certain issues of 

the current regulation. 

Among others, the Bill would modify, if enacted, the following: 

(i) The Higher Courts of Justice will have competence for 

certain issues that are currently in the hands of the Courts of 

First Instance and Commercial Courts (judicial appointment 

of arbitrators and on the exequatur of foreign arbitral awards) 

or of the Provincial Courts (the decision on the action to set 

aside an award). This allows for further specialisation and 

uniformity of the judicial decisions on these issues. 

(ii) The arbitral agreements entered into by a company or a 

person will no longer be, during insolvency proceedings, 

deemed void and without effect, as is currently established in 

the Spanish Insolvency Act. 

(iii) The procedure of the action to set aside the award will not 

have a compulsory hearing, as it is currently often 

unnecessary, hence reducing its duration. 

(iv) Corporate disputes may be the object of arbitration, provided 

there is a provision included in the company’s bylaws with a 

unanimous vote in the shareholder’s meeting. 

3 Trends & Developments 

3.1 Are there any trends in the use of the different dispute 

resolution methods? 

International arbitration has existed in Spain for many years, and 

there are well-reputed Spanish arbitrators who intervene in these 

procedures. 

260 





Spain 

Diego Saavedra 


Castellana, 216 

28046 Madrid 

Spain 

Tel: +34 91 582 9100 

Fax: +34 91 582 9121 

Email: dsaavedra@gomezacebo-pombo.com 

URL: www.gomezacebo-pombo.com 

Diego obtained his Law Degree from the University Francisco de 

Vitoria and the Universidad Complutense of Madrid in 1999. He 

has postgraduate formation in international litigation, and has 

acquired knowledge of the US legal system in a scholarship 

programme at UC Davis, California. 

He has worked in the dispute resolution departments for different 

international firms, including more than 6 years at the Madrid 

office of Baker & McKenzie. He joined Gómez-Acebo & Pombo 

in 2008. 

He has extensive experience in commercial disputes and he is 

also a reference advising in international litigation. He has 

experience in arbitration, concerning both commercial disputes 

and sports law. 

Diego has been a member of the Madrid Bar Association since 

1999. He is a regular speaker in universities and conferences 

both in Spain and abroad. 

Cristina Stampa 


Castellana, 216 

28046 Madrid 

Spain 

Tel: +34 91 582 9100 

Fax: +34 91 582 9121 

Email: cstampa@gomezacebo-pombo.com 

URL: www.gomezacebo-pombo.com 

Cristina graduated from the Law School of the University 

Pontificia Comillas (ICADE) of Madrid in 2007, taking a diploma in 

International Relations. She joined Gómez-Acebo & Pombo in 

September 2007 and is experienced mainly in the field of civil and 

commercial litigation and arbitration. Cristina is a member of the 

Madrid Bar Association. 

Spain 

Gómez-Acebo & Pombo was founded in 1971 with the aim of being the first Spanish law firm with an international presence. Since 

then, our enthusiasm and our desire to move forward have grown stronger every day. 

As pioneers in providing services to international clients demanding excellence and cultural proximity, we are today a network of 

offices located in the main cities of Spain, as well as in Brussels, Lisbon and London. 

The success of Gómez-Acebo & Pombo has been built based on our values, values which have enabled us to make a difference. 

We all follow a basic premise: The customer orientation. Each of us aims to contribute added value to the business and entities 

we work with thanks to our lawyers’ solid legal knowledge; the in-depth understanding of our clients’ businesses; being able to 

anticipate clients’ needs; the professional vocation and enthusiastic commitment to each of the matters we undertake; training in 

languages and other skills which facilitate communication, management and negotiation; knowledge of other markets and ongoing 

training. 




261

The International Comparative Legal Guide to: 

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