Litigation & ADR Annual Report
Choosing the right route
There are a number of options available for dispute resolution between Spanish and
international companies, and each has their own merits
There are two key issues that are central to
cross-border dispute resolution, according
to Julio Garrido, Dispute Resolution
Partner at AC&G Asesores Legales. “Parties
involved in international conflicts must
firstly identify which court will have
jurisdiction over a dispute and, secondly,
which law is applicable to the case,” he
says. “Once these questions have been
answered, then a decision on where a case
should proceed can be made.”
Cross-border litigation requires a
high-level of legal expertise. If a case is
brought in Spain – either by or against a
foreign company – then the ruling must be
enforceable abroad. While this should not
be much of an issue for matters involving
parties from the EU, any claimants or
defendants outside of the EU will require
scrutiny of different jurisdictions’ rules
and treaties.
Santiago Gastón de Iriarte, President of
AC&G, points out that if a case needs to
be heard in a foreign jurisdiction, a similar
process happens in reverse.“It is important
to know something about the procedural
rules in different countries, especially
in places such as the US and the UK,”
he explains. “This means that Spanish
law firms must collaborate closely with
foreign ones in different countries in both
applying the Spanish rules abroad and also
applying foreign rules in Spain.”
“Mediation, which has not been not
used that much in conflicts, is a final
option and becoming more popular,”
Gastón de Iriarte says. “The EU Mediation
directive means any cross-border disputes
involving EU parties can be enforced as a
court order.”
They both suggest that arbitration can be
an easier mechanism. This is because many
countries – including Spain – have signedup to the New York Convention of 1958,
which legally recognises arbitration rulings.
“As such, international conflicts settled by
arbitration may be more straightforward to
enforce,” Garrido concludes.
Julio Garrido
Santiago Gastón de Iriarte
Selecting your mediator
Mediation is increasingly held up as
a time and cost-effective solution to
dispute resolution, according to Gonzalo
Stampa, Founding Partner at Stampa
Abogados. It establishes a settlement
without having to enter lengthy and
more costly litigation or arbitration
proceedings. However, he warns, when
it comes to choosing the right mediator,
parties need to be very careful.
“There have been individuals
who decided to brand themselves as
‘mediators’ as a quick entry to market
and to bill some hours,” says Stampa.
“The problem is that they have very
little genuine understanding of the
mediation process, how to handle it or
the nuances of disputes, result in some
major problems.”
For instance, a mediator inexperienced
in commercial disputes is less likely to
be able to reach a mutually satisfactory
settlement as these go beyond a financial
remedy and often include provisions
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for things such as business agreements or
apologies, explains Stampa, which are much
more sensitive to negotiate. As such, the
dispute is still unresolved.
Likewise, mediation settlements are
generally regarded as contractual and nonbinding, so a mediator needs to be able to
encourage parties to honour their word.
If one party does not fulfil the settlement,
then it may involve going back to court to
sue for breach of contract.
Stampa says the best course of action
is to look for qualified mediators that are
linked to a recognised institution, such as
CIARB. These individuals are vetted by the
organisations so will usually have the high
level of experience and quality needed.
“Recommendations are also an
important factor,” Stampa summarises.
“If a mediator is known for being reliable,
discreet and effective, then that is a great
indication of their quality and will give
both parties involved in a dispute the
confidence to enter mediation.”
Gonzalo Stampa
January / February 2014 • IBERIA 8