Our Partner, Carlos Valls, speaker at the first “WebiTAB” organised by the Barcelona Arbitration Court
On 1 March 2021, the Barcelona Arbitration Court (“Tribunal Arbitral de Barcleona, or TAB) opened its first “WebiTAB”, dedicated to the debate “Arbitration vs. Court Proceedings”.
The conference had also the special participation of José María Fernández Seijo, High Judge of the 15th Section of the Barcelona Appeal Court, the President of the TAB, Juli de Miquel, and the Notary Antoni Bosch, as moderator.
During the presentations, and stimulated by the questions of the moderator, the Notary Bosch, ideas were put forward which gave rise to an interesting debate on the respective advantages of arbitration and ordinary jurisdiction as ways of resolving conflicts, which we highlight (in a non-exhaustive manner) below.
José María Fernández Seijo: Magistrate of the Fifteenth Section of the Barcelona Provincial Court.
From the High Judge’s intervention, we highlight the following ideas:
- Imposing mediation on the parties as a procedural prerequisite, although it is being studied, has positive aspects, but also others that can be criticised.
- Perhaps arbitration opens an additional door to the little room left in the law for judges to apply equity. Its application would be particularly timely in the present pandemic times in relation to contracts of successive tract (e.g., leases), or company law matters, where it is often found that resolution based strictly on the application of the law can lead to results that are not entirely satisfactory because the underlying problem is not addressed.
- The Anglo-Saxon judge is allowed to go to the heart of the matter, to the core of the problem, and sometimes it seems that in our jurisdiction some judges may be tempted to hide behind the legalistic solution in order to avoid the underlying problem.
Carlos Valls: Partner of Augusta Abogados and President of the Association for the Promotion of Arbitration
Carlos Valls began his presentation by analysing some of the differences between the Anglo-Saxon and continental European processes. In his opinion, says Carlos Valls, the main procedural difference, and it is an opinion that he submits to any other better founded, is the intensity with which a party is allowed to inquire about the documentation and information in the possession of the other party. The Anglo-Saxon judicial system allows for greater intensity, and therefore, says Mr. Valls, it also generates more costs.
During the debate, Carlos Valls was able to highlight, among others, the following specific advantages of arbitration over ordinary jurisdiction:
- It is a single instance, with a final and enforceable judgment. Such enforcement is very effective at the international level thanks to the 1958 New York Convention.
- It is a procedure that allows a great deal of flexibility, which can be translated into greater procedural intensity (for example, the “mutatio libelli” of Article 29.2 of the Arbitration Act is permitted).
- The test, in international arbitration, can reflect an interesting synthesis of common law and civil law: the Redfern Schedule as an example of this.
- The seriousness of the arbitral institution is a guarantor of the quality of the arbitrators and, to a certain extent, of the procedure, even if it entails an additional cost.
- An additional advantage is the continuity of the arbitrators in the proceedings.
- The digitalisation of the arbitration procedure is more advanced than in the judicial process and more adoptable both by the parties and by the Arbitral Tribunal.
- ADR in general, but mediation in particular, as a ritualised and sequenced formula, can generate additional results to the negotiation efforts of the parties’ lawyers.
It is also worth highlighting the contribution of Juli de Miquel who, as President of the TAB, emphasised the possibility of the parties being able to resorting to arbitration even after the contract had been signed, in order to resolve any specific dispute that might arise: this subsequent agreement does not depend on the prior existence of a clause in the contract to submit to arbitration.
After a very punctual start and an hour of conference time, the moderator closed the conference.