The Spanish Arbitration Club (CEA) presents its Code of Good Practices

The Spanish Arbitration Club (Club Español del Arbitraje, CEA) has published an Arbitration Code of Good Practices, a document seeking to ensure that arbitration proceeding participants abide by increasingly demanding standards for independence, impartiality, transparency and professional conduct. The goal is to raise standards of conduct to increase society's trust in arbitration.

Presented at the 14th CEA Conference held in Madrid this month, the new code is the outcome of a revision and completion of the 2005 code, drawn up for arbitral institutions only. One of the new features of the new 2019 wording is the inclusion of recommendations addressed to all the professional participants in arbitration proceedings, arbitral institutions, arbitrators, lawyers, experts and funders. Another is the recommendation of a set of model rules for arbitral institutions.

A few of its most important elements are the recommendations made to arbitration institutions regarding their structure and good governance directed at ensuring transparency and independence in the way they operate. Clear rules have also been included on the system for appointing arbitrators.

The recommendations made in relation to arbitrators are directed at raising the standards for independence and impartiality, especially as regards the arbitrators appointed unilaterally by a party, and their duties of disclosure with a questionnaire containing 31 questions that arbitrators must ask themselves. Additionally it puts forward a number of recommendations for safeguarding the independence and objectivity of experts and a questionnaire 15 questions long on the duty of disclosure which they should complete.

It mentions that funders’ interests should be known to the arbitral tribunal, although the subcommittee responsible for this section were unanimous in their wish to limit the duty of disclosure, for the time being at least, to the funder’s existence, although the arbitrators can ask the party for any other information that may be relevant.

On the role of lawyers, the document refers to the minimum ethical principles with which lawyers must be identified in most jurisdictions, with shared and unrelinquishable values that must underlie the conduct of legal professionals defending parties in arbitration proceedings.

Broad support and consensus

The main value of the new code is the great amount of support it has had for its preparation, in a process that has lasted two years. It is an ambitious work, which has had input from over 90 experts, plus in the region of a thousand professionals from this field and important arbitral institutions, which have all contributed to completing the document with a broad consensus.

The Code of Good Practices falls into what is known as soft law which brings together the recommendations that the CEA submits to the whole arbitral community. It expresses a selection of rules which, in the Club’s opinion, should be observed by all the parties involved. The rules are not binding, unless the parties stipulate that this is so, in the arbitration agreement or within the proceeding.

For the preparation of the code, six subcommittees were set up around a committee chaired by Juan Fernández-Armesto, CEA chairman, independent arbitrator and former CNMV chairman, and Carlos de los Santos, CEA deputy chairman, partner at Garrigues in the Litigation and Arbitration Department, together with Krystle M. Baptista, who has acted as committee secretary .