- An Amicable Approximation in Five Acts -
The Berlin Dispute Resolution Days 2023 culminated, on 15 September 2023, for a selected group of approx. 60 people in the Embassy of the Kingdom of Spain. At this venue, the recently initiated DIS-CEIA-CIAM Permanent Working Group celebrated its inaugural in-person event under the title "Broadening the perspective: A comparative look at the arbitration practice in Germany, Spain and Iberoamerica" – with success, as the event was characterized by great mutual interest and a lively exchange between legal cultures. It was a well-orchestrated getting to know each other of DIS, CEIA and CIAM in five acts:
His Excellency the Ambassador of Spain welcomed the guests personally. He emphasized the deep bond between Germany and Spain and the economic importance of their cooperation. The foundations of this cooperation were not only a flourishing economy and trade relations, but also the stable and reliable judiciaries in Germany and Spain. In this context, arbitration was assuming an increasingly important role in the resolution of economic disputes.
Erik Schäfer then introduced the DIS-CEIA-CIAM Working Group, its objectives, and plans:
The Working Group, established in 2022 on the basis of a Memorandum of Understanding, is the institutional response of DIS, CEIA and CIAM to a previous multi-year effort to establish a permanent forum for the cooperation of the German-Spanish Arbitration Community.
The objectives of the Working Group are to expand the network of German-Spanish arbitration practitioners and to provide the institutions with an opportunity to present themselves to the (in particular Ibero-American) arbitration world. The deeper-rooted goal, however, was to promote the mutual understanding of German-Spanish arbitration practitioners for the respective other legal system and culture (including their particularities) through intensive exchange in a way that allows for the development and growth of mutual trust in the quality and integrity of the work of the "other side".
In this sense, the Spanish Embassy event was meant as a prelude to a series of follow-up events which will enable and promote an intensive exchange of the German-Spanish Arbitration Community.
The three institutions (DIS, CEIA and CIAM), each represented by experienced and respected practitioners, were then granted an opportunity to present their respective structure, tasks, and daily work under the moderation of Josef Fröhlingsdorf. These presentations are briefly summarized in the following:
María José Menéndez Arias presented the CEIA (Club Español e Iberoamericano del Arbitraje), whose name has only recently been supplemented by its "I" to further emphasize the additional focus on Latin America. Founded in 2005, CEIA now has about 1,200 members from 49 countries organized in a Spanish chapter and 31 international chapters. CEIA is a non-profit association with the purpose to promote arbitration as an alternative form of dispute resolution, particularly with respect to Spanish- and Portuguese-speaking parties from the Ibero-American region (i.e. Spain, Portugal, and Latin America). In addition, CEIA aims to create a forum in which arbitration-related issues can be discussed, shared and developed. In this regard, CEIA's work is carried out by various commissions and working groups (e.g. Best Practice in Arbitration, Independence of Arbitrators, Procedural Matters) which develop reports, guidelines and recommendations (e.g. CEIA Code of Best Practice in Arbitration, CEIA Code of Best Practice in Mediation, Report on Corporate Arbitration in Spain). A significant part of the day-to-day business also consists of organizing frequent events on arbitration and ADR topics, in particular the annual International Arbitration Congress in Madrid, which in 2023 attracted 540 participants from more than 25 countries. A further event highlight will be the 2026 ICCA Congress in Madrid, organized by and under the auspices of CIAM.
José María Alonso Puig presented the CIAM (Centro Internacional de Arbitraje de Madrid), established in 2019, which has so far administered approx. 30 cases. CIAM is the answer to the previously problematic existence of a multitude of small(er) arbitration institutions in Spain. CIAM now brings together the CAM (Corte de Arbitraje de Madrid), the CEA (Corte Española de Arbitraje) and the CIMA (Corte Civil y Mercantil de Arbitraje) into a single institution. CIAM is supported by the Madrid Bar Association (ICAM) as a strong partner. There is now also a Memorandum of Understanding with CIAR (Centro Iberoamericano de Arbitraje) for a further consolidation. The purpose of CIAM is the independent, transparent and efficient administration of arbitration and ADR proceedings with a focus on Spanish- and Portuguese-speaking parties from the Ibero-American region. CIAM's arbitration rules are in line with the latest and highest standards of international practice. CIAM not only provides five physical hearing locations in Madrid and the technical equipment for virtual hearings, but also two offices in Brazil (São Paulo) and Costa Rica (San José). The advantage of CIAM is that, compared to arbitration institutions in Miami, Geneva, London, New York and Paris, it can offer equivalent legal quality at significantly lower costs. In addition, Madrid has ideal infrastructure (airport, hotels, gastronomy) to be recognized as an international arbitration hot spot. Therefore, according to José María Alonso Puig, the joint goal of DIS and CIAM must be that arbitration proceedings involving German and/or Ibero-American parties are henceforth administered by DIS or CIAM.
Carina Alcoberro Llivina presented the DIS with its more than 100-year history. The structural peculiarity of the DIS – compared to CEIA and CIAM – is that the DIS is both an arbitration association and an administrative institution at the same time. In the administration of its cases, the DIS relies on its experienced case management team of about 15 people, who can work in 9 languages, including Spanish. In its work as an association, the DIS relies on the active commitment of its approximately 1,400 members, who are organized in different working groups (e.g. Effciency, Settlement, Technology, Article-by-Article review of the Rules). In addition to the administration of arbitrations in all traditional areas (such as, e. g. construction, energy, post-M&A, international trade), the DIS has a further focus on the resolution of corporate disputes and sports arbitration. In numbers, the DIS's caseload in 2022 can be summarized as follows: The DIS administered a total of 164 cases, of which 60% were domestic and 40% international, with 10% of the international cases involving foreign parties on both sides. The international cases were almost exclusively conducted in English, and in the vast majority of all cases the place of arbitration was in Germany and German substantive law was applicable. The proportion of cases with an Ibero-American connection was only 2% in previous years and has now risen significantly to 15% in 2023. These cases stem from the sectors of (i) banking and finance, (ii) food industry, (iii) aircraft technology and (iv) construction, and they share relatively high amounts in dispute. This statistical observation further highlights the potential benefits of a close future cooperation between DIS, CEIA and CIAM.
Moderated by Meike von Levetzow, the panel of Jan Kleinheisterkamp and Josep Maria Julià Insenser embarked upon a first comparative law analysis of the similarities and differences between German and Spanish arbitration law.
In both Germany and Spain, the – first discussed – form requirements for arbitration clauses are based on the UNCITRAL Model Law, and therefore follow a "liberal" written form requirement. While there exist particularities in Spain regarding the (valid) incorporation of arbitration clauses into general terms and regarding the inclusion of so-called non-signatories, Germany is currently considering to abolish the written form requirement altogether, so that even oral arbitration agreements would be valid.
Then, the panel discussed the possibilities offered by the respective laws to determine at an early stage whether or not the arbitral tribunal has jurisdiction over a particular dispute. While both legal systems are familiar with the concept of an arbitration defense in state court proceedings (cf. Section 1032 (1) of the German Code of Civil Procedure), German law provides an additional clarification option in Section 1032 (2) of the German Code of Civil Procedure (ZPO): Prior to the constitution of the arbitral tribunal, each party has the right to apply to the state courts for a ruling on the admissibility of arbitration for the particular dispute.
Finally, the panel discussion – with lively audience participation – addressed and focused on the controversial question of whether and, if so, how the arbitral tribunal is called upon to promote and facilitate an amicable settlement between the parties. It became apparent that there is a clear divergence between Spanish and German law regarding whether and to what extent the arbitral tribunal can or should utilize its preliminary evaluation of the case (or individual components thereof) to encourage a settlement between the parties or streamline the proceedings. This topic highlighted the varying positions of legal cultures in relation to specific procedural tools, emphasizing the need for greater mutual understanding of “opposing” viewpoints and arguments. The ensuing discussion was therefore the epitome of the Working Group's mission to facilitate intensive exchange, which may then foster an improved mutual understanding, and ultimately trust.
The event concluded with open discussions in a lively atmosphere accompanied by Spanish tapas and wine in the foyer of the Spanish Embassy. In keeping with the Working Group’s objectives, new contacts were made, the panel discussion was continued, the benefits of cooperation between the arbitral institutions were discussed and ambitious plans for future events were forged.
Anyone who attended the event must be eager to discover what lies ahead.