Litigation & ADR annual report
Consumer
conflict
Consumers are showing an
increased willingness to take on
banks and major corporates,
a trend that is being driven, in
part, by increases in third party
funding – meanwhile, there are
calls for the establishment of an
‘arbitration hub’ in Iberia
Consumers of financial products
in Spain and Portugal are growing
in confidence and now know that
they have the ability to take legal
action against banks that have mis-
sold them any of their products.
Indeed, financial sector disputes are
a key source of work for lawyers
in Iberia. However, though class
actions may be most common in the
finance industry at present, energy
and telecoms consumers are also
expected to increasingly seek legal
redress if they believe they have
been mistreated by major corporates.
Meanwhile, third party funding
is expected to fuel a surge in such
claims, in addition to anti-trust
disputes. Elsewhere, arbitration is
growing in popularity, so much so
that lawyers in Madrid say steps
should be taken to establish the city
as an ‘arbitration hub’ given the
popularity of the Spanish language
around the world. They also argue
that Spain’s close links with both
South America and North America,
and its proximity to Africa, make
it the ideal choice for international
arbitration.
Banks selling NPLs
Óscar Franco Pujol, partner at DLA
Piper, says claims for antitrust-
related damages is a growing area
for law firms. He adds that the sale
of non-performing loans (NPLs)
by banks should also generate a
significant amount of contentious
work. “In the last year, around €50
billion of NPLs have been sold in
Spain and some of this will turn into
litigation,” Franco Pujol says.
Acquisition of debt and shares
by funds will also lead to a
Spain: What have been the major developments
and trends in litigation and ADR in the last year?
“A number of local firms that flourished with regard to
consumer complaints related to financial products are
trying to look for new similar cases. This creates risks not
only for financial institutions, but also other sectors such
as the automotive or the pharmaceutical sectors. The
evolution of this trend may lead to consumer and product
liability litigation becoming more sophisticated.” Mercedes
Fernández, partner-in-charge, Madrid, Jones Day
“The legislative reforms approved in recent years have resulted
in a significant decrease in the number of pending litigation
and appeals in Spain. The total number of pending cases and
appeals decreased from 3.2 million cases at the end of 2010, to
around 2 million cases at the end of 2017.” Javier Torre de Silva
y López de Letona, partner, CMS Albiñana y Suárez de Lezo
“Banking litigation and insolvency proceedings have
decreased considerably. The number of disputes resolved
using ADR, rather than in traditional courts, might continue
to increase due to the caseload of traditional courts, the
perception of lower costs and the shorter timescales.” Esther
Domínguez, lawyer, Marimón Abogados
38 • IBERIAN LAWYER • January / February 2018
significant amount of litigation, says
Linklaters partner Borja Fernández
de Trocóniz. “Funds are more
aggressive in the way they act as
shareholders – they want returns,
they are fearless about litigation and
they think less about relationship
issues.” he adds. Financial
litigation related to banking
matters is another major source
of legal work, according to Uría
Menéndez partner Álvaro López de
Argumedo, who adds that his firm
has acted for banks in many such
cases. Meanwhile, though class
actions may, at present, be most
common in the finance sector, they
are likely to soon become a feature
in other consumer sectors, such as
energy and telecoms, argues Borja
de Obeso Pérez-Victoria, partner at
Gómez-Acebo & Pombo.
“Financial litigation has occupied a central place in the
Spanish scene over the last year. In this regard, it is
important to point out the creation of regional courts
specialised in land clauses (“cláusulas suelo”), as well as
in lawsuits related to mortgage costs, which have had a
significant impact on the banks’ profit & loss accounts.”
Fernando Manzanedo, partner, Ramón y Cajal Abogados
“During the last year we have noted an increase in the
number of lawsuits related to unfair competition, as well
as litigation regarding intellectual property.” Jordi Sánchez
Sánchez-Crespo, partner, RCD Rousaud Costas Duran
“Third party funding is becoming an increasingly important
tool in global commercial arbitration matters.” Gonzalo
Aranzabal, partner, Watson Farley & Williams
“The three major arbitral institutions in Spain, the Corte
de Arbitraje de Madrid (CAM), the Corte Española de
Arbitraje (CEA) and the Corte Civil y Mercantil de Arbitraje
(CIMA), have signed a memorandum of understanding
aimed at establishing a single institution to jointly handle
international arbitrations, while continuing to administer
domestic arbitrations separately.” Luis Capiel, partner,
Arias SLP
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