Litigation on banking products is currently a hot topic in Spanish practice. In this article we analyze a resolution rendered by the Alicante Court of Appeals stating that a claim seeking that an interest rate swap was declared null and void could not be settled by means of arbitration.
The grounds are that: i) global arbitration clauses such as those contained in framework agreements prevent the parties from having access to the courts; ii) the initiation by the bank of enforcement proceedings before the courts against the guarantees granted by the client prevents the bank from invoking the arbitration clause; and iii) this issue cannot be settled by means of ex aequo et bono arbitration since the dispute was more closely related to legal rather than factual issues.
Iurgium [previously Spain Arbitration Review]