The Rulings of the Civil and Criminal Divisions of the High Court of Justice of Madrid dated on the 13th of July 2015 and the 19th of January 2016, have raised a recurring question with regards to the resolution of disputes which arise from the contracts entered into between companies that operate in regulated sectors. The two aforementioned rulings particularize the discussion on a conflict that has arisen in the natural gas sector, and for this reason, the present document will be focused on this sector. However the same question can be considered in any controversies that may arise between operators in the electric sector or in any other economic sector which are subject to the regulation and intervention by the administrative authorities. This ultimately deals with the problems related to the coexistence of the administrative powers on the settlement of certain conflicts that arise between these operators, with the possibility that these may be submitted for private arbitration.
In the cited rulings, the High Court of Justice of Madrid annuls the two arbitration awards, partial and final, issued in the arbitration proceedings which were contemplated as a result of the decision by the Transmission System Operator, ENAGAS TRANSPORTE, S.A.U., to not accept the request for a reduction in the interconnection capacity contracted in an international gas pipeline by GAS NATURAL COMERCIALIZADORA, S.A.
The court considers this to be a subject matter that is not subject to arbitration, given that, amongst other reasons, the jurisdiction of such cases is the responsibility of the National Markets and Competition Commission (CNMC). However it cannot be inferred that the Court is passing a general ruling against the possibility of submitting to arbitration the contracts in the natural gas sector. The Rulings resolve a specific case in which a series of particular features coincide which should not be extrapolated to cover the majority of the disputes that may arise from the contracts entered into between the operators of the natural gas sector.
Iurgium [previously Spain Arbitration Review]