Giving companies a voice is the motto of these arbitration meetings organised by the European Arbitration Association, as a continuation of its Arbitration Open.

The first event held at Andersen Tax & Legal was followed by this one held at KPMG Abogados where companies, external lawyers and arbitrators analysed the arbitration procedure and the functions of each operator involved in it.

On this occasion, they participated, moderated by Fernando Cuñado, partner at KPMG Advisory (Forensic), Alma Gómez Valdés, deputy director of the legal department of Técnicas Reunidas; Félix Montero, partner at Pérez-Llorca Abogados; Deva Villanúa Gómez partner at Armesto & Asociados; y Bernardo Cremades partner at B. Cremades & Asociados in the panel of speakers.

In this environment, the use of technology should help make arbitration proceedings faster.

It is the experts and the parties themselves who are increasingly making use of this disruptive technology.

Digital transformation is also reaching the world of arbitration.

“In this way, the lawsuit can already be filed and the response can be received online and it is possible that in the future arbitrators will have to soak up this technological culture to improve their work in each matter,” he says Javier Iscar, host of the event and secretary-general of the European Arbitration Association.

The use of technology in arbitration can reduce the time limits of these proceedings and very possibly reduce costs.

“Arbitrators must stay up to date both legally and technologically. They must have a firm grasp of the substance of the dispute and of arbitration procedure, be able to work in different languages, and possess a reasonable level of technological knowledge suited to the times.”

Experts pointed out that technology can mark a before and after in its regular use in this type of matter. There was talk of blockchain, artificial intelligence and a series of tools that are here to stay.

“Any self-respecting professional should know these tools, their pros and cons. They are key elements to improve communication between the arbitrator, the Court and the parties themselves, especially in proceedings where the matter is complex and that translates into hundreds of pages to have to be studied in detail,” clarifies this jurist.

Gomez Valdés, in his speech, analysed the increasingly important role of in-house lawyers in arbitration proceedings, both in the drafting of contracts and in the selection of the external firm that supports them in arbitration, a choice that usually depends on the characteristics of the arbitration, its place and language, as well as on the arbitration strategy itself.

Arbitration and its use in international trade

In fact, the decision to go to arbitration is up to companies “when it is an international relationship, they tend to go almost in most cases, supported by an Arbitration Court that has sufficient experience and solvency to have handled first-rate cases, and there the list is extensive from the ICC of Paris, to the London Court and even to our arbitration courts, CIMA, Court of Arbitration of the Madrid Chamber,” he explains Íscar.

This discussion analysed the role of all stakeholders involved in arbitral proceedings. From translators, technology assistants, to arbitrators, courts and external lawyers.

“For arbitration to remain healthy, all these professionals must do their part. As soon as one element fails, the process can slow down and cease to move forward. In addition to the arbitrators and the parties, it is essential that the other participants intervene effectively,” says this legal expert.

The role of judges and courts in arbitration is also important.  They have support and control functions for the arbitration procedure.

“It is very important that our judges from the control that the work they do is aligned with the existing international jurisprudence in the field of arbitration. There cannot be magistrates who want to make their own doctrine.”

“They damage both the institution of arbitration and the country’s standing and reputation,” he stresses.

In this context, companies are increasingly clear about the time and costs of arbitration and highly value the fact that arbitration institutions can accommodate that specific scenario. “They usually include the arbitration clause in their contracts so that arbitration is more operational.”

“When they make the decision to go to arbitration, they spend time selecting the firm that will support them,” he says Íscar.

The interventions of Cremades and Villanúa focused on describing the role of arbitrators in arbitral proceedings. Having good arbitrators, experts in the field, can make the arbitration procedure more agile and obviously the award or resolution better worked.

“Arbitration courts are above people, which implies that their efficiency must be independent of the professional who manages it,” he clarified Villanúa in his speech.

From Pérez-Llorca, Montero He recalled that external law firms that advise companies on arbitration matters must design a joint strategy with the client. You have to be practical above all else and really explain to the client how you are going to approach that arbitration matter.

“Usually the external firm manages the arbitration under the supervision of its client company. It is essential to explain all the steps that are being taken until the final outcome,” clarifies our interlocutor.

For the experts who participated in this debate, it is essential to prepare well before arbitration as it is a different tool from the judicial procedure.

“You have to realize that these are procedures that offer the parties more time to prepare the lawsuit, evidence because usually the arbitrators give the appropriate deadlines to present the case. This issue in the judicial route is impossible, always pending the corresponding twenty days”.

Arbitration for SMEs, necessary

It is therefore quite common for the parties to request five months to file the claim and another five months to respond, especially in complex international matters. “A case of this significance always requires more time, and the arbitrators are responsible for managing it.”

In the face of this, there is a trend to promote shorter arbitration procedures at a more reasonable cost for SMEs.

Precisely the challenge of SMEs that go to arbitration is one of the issues where the speakers agreed in their interventions in this second Little Open “it is above all about working so that companies coincide in domestic arbitration and its regular use”.

“There are still many companies that, due to ignorance, do not realize the advantages of the arbitration procedure in matters that are not international. They have to realize that they can also use it for other more internal matters,” he clarifies Íscar to Confilegal.

From this debate held at KPMG’s headquarters, it can be deduced that companies are clear about the need to have lists of solvent arbitrators “in order to be able to have a replacement in the event that their first option is not operational”.

“They also want arbitrators whose schedules allow them to devote the time the matter deserves. They want certainty and transparency regarding the duration and cost of arbitration, and they want to avoid surprises from the outset”, this legal expert emphasizes.