The 14th Section of the Provincial Court of Barcelona has confirmed the Ruling that declares null an advance test carried out with judicial authorization to be used in a subsequent arbitration. After having admitted the anticipated practice of a chemical analysis on a consignment of 300Tm of recycled cooking oil destined for the manufacture of biodiesel, the Court of First Instance No. 42 of Barcelona annulled said test, warning that it lacked competence and jurisdiction to carry it out . Now the Provincial Court has confirmed this decision.
As is well known, the general rule is that the means of evidence that the parties intend to use in any process are practiced in the evidentiary phase of the same, once they have been formally admitted by the competent court. However, the inevitable wait involved in the procedural deadlines may determine that the parties are not in a position to wait for the evidence phase, either because the means or source of evidence is in objective danger of being lost or because it is impossible to practice it. at a later time.
To solve this problem, the figures of anticipated evidence and assurance of evidence arise in the procedural system. The first involves the practice of the means of proof, with all the guarantees, before reaching the ordinary moment in which said practice must be verified. The second determines the adoption of useful security measures, which prevent the destruction or alteration of material objects or the state of things, so that neither human behavior nor natural events harm the possibility of timely generating the evidence that is intended.
The adoption of one or another measure corresponds to the ordinary courts and for them to agree on the anticipated practice or the assurance of a means of proof, it is necessary that there be objective circumstances from which it can be deduced a real risk of loss of the source beyond the natural risks that exist in all cases.
The advance practice of a means of proof can take place before the process in which the evidence will be used begins or once that process has begun, before the evidentiary stage takes place in the that said means of proof should be performed ordinarily. The objective is to guarantee the achievement of objective legal truth and the effective protection of the rights of those who come under the protection of the courts. However, it is essential that the anticipated performance of the means of evidence is always carried out in accordance with the principles that define its content (publicity, contradiction, immediacy, etc.), with all the procedural guarantees and observing the rules of public order that regulate its use. exercise.
In the case at hand, the buyer and requestor of the advance test is an Aragonese company that acquired said merchandise imported from Singapore under CIF Barcelona terms, expressly agreeing with the seller that any dispute arising from that operation would be subject to English law and would have to be resolved through arbitration in London. Failure to pay for previous operations between the same parties determined that the seller retained the 300Tm of oil that was the subject of the commercial sale in the port of Barcelona. Frustrated the operation and broken trust between the parties, the Spanish importer alleged that the merchandise was outside the agreed technical specifications and judicially requested as early evidence that an analysis be carried out by recognized experts to prove the breach of contract in a future process. of the seller. The requested measure was justified by the possibility that the merchandise could be resold or withdrawn from the port of Barcelona by the seller without prior notice.
The Judge admitted the request without noting that contractually the parties had submitted to the English arbitral jurisdiction, and allowed the early practice of the test without stating that the seller had been validly notified in Singapore. When the latter became aware of what had happened, she formally appeared in the procedure and requested the annulment of the proceedings due to the lack of jurisdiction of the Court and due to the defects that occurred in the processing of the procedure. The agreed annulment was based exclusively on the provisions of the Arbitration Law and on the restrictive interpretation of the functions of support and control of arbitration that are usually carried out by the ordinary Spanish courts.
The Law of Civil Procedure provides for the possibility of anticipating and ensuring proof before initiating “any proceeding that” and the Arbitration Law expressly admits and regulates legal support and assistance in taking evidence. However, the latter limits the possibilities of intervention of the ordinary courts to specifically indicated cases, among which is not the anticipated practice or the assurance of the means of proof. That is, making a literal and restrictive interpretation of the current procedural rules on the matter, Spanish law requires that the anticipated judicial practice or the securing of any means of proof that is intended to be asserted in an arbitration be previously authorized by the arbitral tribunal. competent.
Not all judicial assistance functions carried out by ordinary Spanish courts before an arbitration is initiated suffer the same fate. Indeed, the Arbitration Law expressly provides for the judicial appointment of the arbitrators who are members of the arbitral tribunal and also the early judicial adoption of precautionary measures, with express reference to the Civil Procedure Law that authorizes urgent protection before initiating an arbitration process.
The difference between these measures and advance evidence is that for the former, the Arbitration Law expressly provides for their possible judicial adoption before initiating arbitration. On the contrary, for the anticipated practice or assurance of a means of proof, the same law only refers to the possibility of judicial assistance in evidentiary matters when it is directly requested by the competent arbitral tribunal or by the parties, but with prior authorization from that one.
In the Explanatory Memorandum of the Arbitration Law itself, it is stated that the Spanish legislator wishes to configure the arbitration procedure with great flexibility, even in the absence of an agreement between the parties, but the practice of evidence for commercial arbitration must always be authorized by the competent court to hear the main issue.
In evidentiary matters, although the rule is to hold hearings for the taking of evidence, the maximum freedom of the parties and the arbitrators is also recognized, expressly regulating judicial assistance for such taking , which is also one of the classic functions of judicial support for arbitration. Moreover, the legislator recognizes that the indicated assistance can be given through the judicial practice of evidence or by adopting security measures that allow the arbitrators to practice such evidence by themselves, but in no case does it refer to the possibility of agreeing on something or the other without the prior authorization of the competent arbitral tribunal.
The need for the anticipated evidence that is intended to be asserted in an arbitration to be previously authorized by the competent arbitral tribunal was taken up in 2012 by the 13th Section of the Madrid Provincial Court, whose pronouncement It is serving as a precedent for the Courts of First Instance that rule on the matter:
“It should not be forgotten that the aforementioned article 7 of the Arbitration Law of 2003, when it regulates judicial intervention, provides that «in the matters governed by this Law, no court shall intervene, except in the cases in which it so provides. That is, it establishes a general rule -the non-intervention of a court of ordinary jurisdiction- and an exception -the specific cases in which the law provides otherwise- that must be interpreted restrictively. In the present case, not only does the Arbitration Law not contemplate the anticipation and assurance of evidence, but it limits the “functions of support and control of arbitration” to the cases contemplated in article 8, in which it restricts the performance of the Court of First Instance to “provide assistance” (article 8.2); to enforce the award (article 8.3); to compulsorily enforce arbitral awards or resolutions (article 8.4); to recognize foreign arbitral awards or resolutions (article 8.6); and, finally, for the enforcement of foreign arbitral awards or resolutions (article 8, last paragraph). From this it is inferred that, effectively, the ordinary jurisdiction must provide the assistance, support and control provided for in said precept for the execution of foreign arbitral awards and resolutions, but without this attributing jurisdiction to the adoption of resolutions that are incumbent on the own arbitral institution. In the same sense, article 33 of Law 60/2003, of December 23, on Arbitration, that judicial assistance for the taking of evidence -without distinguishing either between anticipated or agreed evidence within the arbitration procedure, as the appellant alleges- provides that “1. The arbitrators or any of the parties with their approval pThey may request assistance from the competent court for the taking of evidence, in accordance with the rules applicable to evidence. This assistance may consist of taking evidence before the competent court or the adoption by the latter of the specific measures necessary so that the test can be taken before the arbitrators; and 2. If so requested, the Tribunal will test the evidence under its sole direction. In another case, the Court will limit itself to agreeing on the pertinent measures». Once again, the 2003 Law conditions the action of the ordinary jurisdiction to the fact that the arbitrators request or approve the request of the parties aimed at the Court practicing some evidence.”
The court does not doubt the right of the parties to an arbitration to take evidence in advance or ensure its production or conservation with judicial measures, but in both cases it requires the prior authorization of the competent arbitral court . To reinforce this restrictive position, it must be taken into account that the Law of Civil Procedure requires that both measures be adopted exclusively by the court that is considered competent to hear the main matter, the same that must verify its jurisdiction and objective competence, as well as its territorial competence when it is based on mandatory norms. If the parties have submitted the resolution of their disputes to arbitration, it is clear that no ordinary court will be competent per se to hear the main issue.
However, it seems that the ordinary Spanish courts are not always completely clear about the criteria to adopt in matters of early evidence or assurance of evidence for commercial arbitration. In fact, in 2008 the 19th Section of the Provincial Court of Barcelona peacefully admitted the adoption of measures to secure evidence before initiating arbitration in the following terms:
“Art. 297 LEC establishes that before the initiation of any process, the one who intends to initiate it or any of the litigants during the course of the same, may request the court to adopt, by order, useful insurance measures to prevent, due to human conduct or natural events, which can destroy or alter material objects or states of affairs, it is impossible at the time to carry out a relevant test or even make no sense to propose it. This precept is applicable even if it is a question of securing a necessary proof for an issue submitted to arbitration.”
It could be thought that the ordinary Spanish courts are more flexible when the decision is not aimed at the anticipated practice of the means of proof, but rather its mere assurance so that it could be opportunely practiced by the arbitral tribunal. competent, but there are no great jurisprudential precedents on the matter and there is no normative difference in the regulation of one or another measure to justify a different treatment.
We can also question the restrictive interpretation of the anticipated test for arbitration carried out by the Spanish ordinary courts, especially when the adoption of precautionary measures is peacefully accepted, which in the long run can be much more burdensome. for the affected party, but for now the mandatory nature of the procedural rules is what rules. With the current regulation in hand, when the parties have agreed to arbitration to resolve their disputes, means of proof that have not been previously authorized by the competent arbitral tribunal cannot be acted upon or secured in advance.
Regardless of the fact that evidentiary emergencies are not and should not be the exclusive domain of judicial proceedings, we believe it is essential to be very clear about the criteria in force in Spain in terms of early evidence and assurance of evidence for the commercial arbitration. Otherwise, there is not only the risk of seeing a judicial request denied, but even the production of evidence that in the long run may be essential to succeed in the arbitration dispute is jeopardized.
Article published on 2/8/2019 in Economist Jurist: https://www.economistjurist.es/articulos-juridicos-destacados/the-anticipated-proof-and-the-assurance-of- the-test-for-commercial-arbitration/