The scant regulation that the Spanish Arbitration Act contains on corporate arbitration seems only to admit, for the submission to arbitration of claims challenging corporate decisions, those arbitration agreements included in the by-laws, a conclusion ratified by part of the literature.
This paper recognises, when it comes to challenging corporate decisions, the existence of obstacles (i) “common” to arbitration stemming from both an arbitration agreement included in the by-laws and not included in those, and (ii) exclusive to the latter. These obstacles are the subject of an analysis that leads to their “defeat”, showing that arbitration agreements not included in the by-laws are, provided they are contained in “omnilateral” shareholders’ agreements, admissible.
The conclusions reached are, in the author’s opinion, extraordinarily relevant for making corporate arbitration more flexible, which, in the light of its current lack of success in Spain, could be ideal for revitalising it.
Iurgium [previously Spain Arbitration Review]