On January 11th, the Spanish Council of Ministers approved a draft Law for the boost of mediation in civil and commercial matters. Among other issues, the draft Law provides for mandatory mediation in a wide variety of fields, including liability for professional negligence, inheritance, judicial division of estate, conflicts among shareholders or with the corporate bodies in companies.
Legislative progress has been delayed by general elections, to be held on April 28th, 2019.
A recently published judgement (number 3/2019, January 21st) rendered by the Madrid Superior Court of Justice (“TSJM”) partially annulled an arbitral award issued by a sole arbitrator, declaring null the costs allocation made by the arbitrator. The TSJM stated in its judgement that:
“b.- This partial annulment …… leaves the [arbitrator’s] declaration without effect, but the court, given the scope of this annulment action may not complete or substitute the declaration annulled, as requested by the plaintiff, that is, to condemn the respondent to the payment of the costs and expenses caused, since this is not an ordinary judicial action, such as an appeal. This without prejudice to the fact that the plaintiff may exercise the appropriate actions in protection of its rights.”
The TSJM does not mention what “appropriate actions” are available to the party to protect its rights. Though Spanish arbitration law does not provide for this situation, the TSJM in its judgement number 41/2017, June 6th, addressed exactly the same issue. In this case, the TSJM annulled partially the award, declaring null the costs allocation made by the arbitrator. And it stated:
“By virtue of the aforegoing, the issue of costs remains undecided, though this question cannot be decided by this Tribunal, because the scope of this court is limited to its authority to annul, given the purely declaratory nature of the annulment, however, it will have to be the same arbitrator who dictated the annulled award who must decide the issue of the costs, as the award lacks a declaration that must be integrated by legal imperative, as is deduced from article 37.6 of the Arbitration Act…..”
This judgement was referenced positively in obiter dicta in the TSJM’s judgement number 33/2018, June 25th.
Comment: Judgement 3/2019 does not mention the original arbitrator´s duty (and indeed, legitimacy) to issue a new decision related to the issue of costs, and thus reintegrate and complete the award. However, it should be reasonable to assume that the reasoning made in the two previous judgements regarding this issue stands, and that, therefore, the original Arbitral Tribunal is under the obligation to issue a decision on costs and thus complete the award.
On 20 December 2018 the International Court of Arbitration of the International Chamber of Commerce (ICC) published an updated Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (“Note”).
In summary, the Note (paragraphs 41 through 46) provides, among other new issues, that, as of January 1st, 2019, ICC awards may be published.
The Secretariat will inform the parties and arbitrators, at the time of notification of any final award made as from 1 January 2019, that such final award, as well as any other award and dissenting or concurring opinion made in the case, may be published in its entirety no less than two years after the date of said notification. The parties may agree to a longer or shorter time period for publication.
At any time before publication, any party may object to publication or require that any award be in all or part anonymised or pseudonymised, in which case the award will not be published or will be anonymised or pseudonymised.
In case of a confidentiality agreement covering certain aspects of the arbitration or of the award, publication will be subject to the parties’ specific consent.
The Secretariat may anonymise or pseudonymise personal data included in the award as necessary pursuant to the applicable data protection regulations.
The Secretariat may always, in its discretion, exempt awards from publication.
- The Note provides an opt-put system. Parties desiring confidentiality will be able to decide whether to authorize publication of the award or not. In the absence of any statement, the awards may be published.
- On the assumption that publication ensures better award quality (admittedly, a matter for debate to a certain extent), we may see in the future more parties agreeing at the commencement of the arbitration to authorize publication on an anonymised basis.
- Note that dissenting opinions may be published as well. This possibility could probably enhance award quality further.