ARBITRATION
WHAT IS ARBITRATION?
It is a system of dispute resolution in which an impartial third party, the arbitrator, resolves the dispute by means of a final award, equivalent to a final court judgement. Many contracts, company statutes and wills already incorporate clauses that prioritise arbitration to litigation in court in the event of dispute.
CHARACTERISTICS
The parties can agree that the arbitration will be decided in law -by giving legal reasoning for the decision based on the legal rule applicable to the case- or in equity -following the natural criterion of fairness and taking into account circumstances that allow the strict application of the legal rule to be moderated- depending on which modality is better identified with the matter and the conflict.
The type of arbitration chosen does not affect the formalities of the procedure, but it affects the way in which the arbitrator adopts his or her decisions and resolves the dispute definitively.
In the absence of an agreement of the parties on the type of arbitration, the Law provides that arbitration will always be at law.
ADVANTAGES
Fast and agile
Unless the parties have decided otherwise, the arbitrator must issue the award within a maximum period of six months from the commencement of the arbitration. Much faster than the courts.
Flexible
The parties and the arbitrator can shape the course of the proceedings, setting the stages and time limits they deem appropriate.
Specialised
Arbitrators are professionals who are specialists in the legal field being arbitrated.
Confidential
As required by law, the Tribunal will not give any information or publicity about the cases handled.
Competitive
In this instance, a definitive solution is obtained at no greater cost than that produced by the arbitration itself.
Efficient
The vast majority of awards rendered in TAB arbitrations are complied with by the parties voluntarily, without the need for judicial enforcement.
ARBITRATION CLAUSES (AGREEMENTS)
Through the arbitration clause or agreement, the parties decide to submit disputes arising from a specific contractual or non-contractual legal relationship to arbitration.
In order to resolve disputes that have arisen or may arise in the future through TAB arbitration, the parties must include a standard arbitration clause in the contracts they sign or in the articles of association of the companies they form. They may also agree to submit to arbitration in a separate document or even by exchanging letters or other means of telematic communication, which will provide a record of the agreement.
Once agreed, arbitration is binding on the parties and prevents the courts from hearing disputes when the interested party alleges the existence of an arbitration clause or agreement.
ARBITRATION CLAUSE IN CONTRACT
For the settlement of any dispute arising from this contract or legal act, the parties submit to the institutional arbitration of the Tribunal Arbitral de Barcelona [Barcelona Arbitration Court] of the Associació Catalana per a l’Arbitratge [Catalan Association for Arbitration], which is entrusted with the appointment of the arbitrator or arbitrators and the administration of the arbitration in accordance with its regulations.
ARBITRATION CLAUSE IN COMPANY STATUTES
All corporate questions and disputes, and those arising therefrom, arising between the company and its directors, liquidators, auditors or shareholders, or any of them among themselves on corporate grounds, shall be submitted to the institutional arbitration of the Tribunal Arbitral de Barcelona [Barcelona Arbitration Court] of the Associació Catalana per a l’Arbitratge [Catalan Association for Arbitration], which is entrusted with the appointment
of the arbitrator or arbitrators and the administration of the arbitration in accordance with its regulations.
By way of example, all disputes relating to the nullity of the company or structural modification, the challenging of corporate resolutions, corporate and individual action for liability against directors, the separation and exclusion of shareholders as well as the dissolution and liquidation of the company, the paralysis of the corporate bodies or the necessary fixing of the price of membership fees for any corporate cause, as well as those arising therefrom, are subject to this arbitration.
TESTAMENTARY CLAUSE
All inheritance questions and disputes, and those arising therefrom, arising from acceptance to final adjudication, between the testator’s beneficiaries and between them and the executors, accountants or administrators of the estate, shall be submitted to the institutional arbitration of the Tribunal Arbitral de Barcelona [Barcelona Arbitration Court] of the Associació Catalana per a l’Arbitratge [Catalan Association for Arbitration], which is entrusted with the appointment of the arbitrator or arbitrators and the administration of the arbitration in accordance with its regulations.
By way of example, all disputes relating to the actions of the executors and administrators in the execution of the succession of the deceased, the interpretation, integration, application and/or execution of the clauses of the will and of the public or private documents executing the succession are subject to this arbitration, including those relating to the distribution and administration of the inheritance, the inventory and valuation of assets, rights and obligations that make up – or should make up in the opinion of one of the interested parties and not of one or more others – the estate, as well as the actions of the executors of the will and their responsibilities, and those arising therefrom.
NO ARBITRATION CLAUSE
but I am interested in arbitration
There is the possibility of reaching an agreement with the other party to agree to arbitration.
The TAB, through the arbitration service without prior arbitration clause, can facilitate this
agreement by contacting the other party or their lawyers.
COST OF ARBITRATION
Two concepts have a significant effect on the final cost of arbitration:
1. The remuneration of the arbitration institution and the arbitrator.
2. The costs of lawyers and experts.
