José Antonio Caínzos: “The real protagonist of arbitration is the parties. Their fears mark the fields in which we have to work”

We spoke with José Antonio Caínzos, lawyer and arbitrator at José Antonio Caínzos LDR and founding partner and honorary president of the Spanish Arbitration Club, on the occasion of his participation in the I Arbitration Channel Summit, which will be held on 10 May in Rio de Janeiro (Brazil) with the collaboration of Gericó Associates as media partner. 

In the context of your participation in the I Arbitration Channel Summit, can you give us a first glimpse of the clients’ perspectives on the arbitration process?

We cannot forget that the real protagonist of arbitration is the parties, i.e. the clients. Their fears mark the areas in which we have to work: the exquisite honesty of the arbitrators and the arbitration institutions, the specialisation of the arbitrators to understand the economic sector in which the dispute is taking place, the efficiency of the procedure with a reduction in time and costs and the capacity to adapt to technological changes.

Do you think that arbitration is consolidated in Spain as a method of dispute resolution?

I have no doubt that it is. Spain is a country with legislation comparable to that of any advanced country in arbitration through the Arbitration Law of 2003, which follows the Uncitral Model Law; high quality, recent and consolidated jurisprudence that clarifies the limits of annulment and, in particular, the grounds of public order, and an immense majority of judges in favour of arbitration.

It is party to all the relevant international conventions on arbitration, including New York, Geneva and Washington; and it has an arbitration community of excellent quality, both in terms of lawyers and arbitrators and experts, which has been joined by women, young people and practitioners from many countries, especially from Latin America. In short, it is a safe and advanced country where arbitration is at a great moment.

As a founding member and honorary president of the Spanish Arbitration Club, how do you see Spanish arbitration in the international context?

I believe that the enormous leap that Spanish arbitration has made in this century is largely due to the Spanish Arbitration Club or, to be more precise, the Spanish and Ibero-American Arbitration Club, given that its name has just changed. The CEA, as we have affectionately come to call it, is a success story that has not only influenced Spain, but also many other countries in which it is present through its 31 International Chapters, which bring together members from more than 40 countries, with a total of 1,300 members. When we founded it in 2005, there were 15 of us and, based on that figure, it is easy to get an idea of the power of attraction it has had during all this time.

The CEA’s activities, which annually exceed one hundred, serve to: train in all matters related to arbitration, broaden the base of quality practitioners, promote the exchange of ideas with the judiciary, encourage the use of arbitration in companies, the implementation of good practices and so that the advances in one country serve as an example in others. In short, nothing would be the same in Spain if the CEA had not been created.

What could Spanish arbitration contribute to Latin American arbitration and vice versa?

From my point of view, I believe that the CEA has had an important impact in Latin America. It seems to me that it has been a way to bring together arbitration practitioners from many countries, which did not have similar institutions. It has also helped to broaden arbitral communities, opening them up and making them more permeable to global trends by having partners from different continents sharing their knowledge and experience.

It has also provided a network of contacts for people who, on their own, would have found it difficult to be known in the international market for the provision of services.

Latin America, for its part, has contributed a great deal to the CEA. First of all, a very important part of its membership, as well as extraordinary talent. Many of the best lawyers and arbitrators in the world come from Latin America and I believe that the vast majority of them are members of the CEA.

A common mission that all CEA members have is to increase international arbitration in the two languages of Latin America: Spanish and Portuguese, Portuguese and Spanish. There is a lot of work to be done in this area given that the statistics of international cases in the most relevant arbitration courts show that our two languages are underrepresented in those cases.

From your professional experience, which is more complex: being a party advocate or an arbitrator in arbitration proceedings?

Both tasks are equally complex and important. The perspective changes, but both figures face the same problem and have to give an adequate response. The major difference is that the lawyer knows where he or she stands from the outset and has a certain freedom to work. Meanwhile, the arbitrator is impartial and therefore does not know what the right position is and has to decide on the basis of the information provided by the parties.

In which sectors is arbitration most consolidated in Spain?

I don’t consider Spain to be different from other countries. There are sectors that resort to arbitration on a recurring basis: energy; infrastructure or construction and engineering; investment in companies, given that disputes arising from mergers and acquisitions (M&A) are also settled in this field, and foreign trade. Corporate arbitration may continue to grow, although it already occupies an important place at the moment.

Which areas of arbitration do you think will need the most impetus in the coming years?

The financial world, understood in a broad sense, makes very little use of arbitration and I don’t think there are reasons for this. For this reason, both in insurance and in financial institutions, arbitration can grow significantly. The technology sector, with all its ramifications, also has plenty of room for growth. The pharmaceutical sector is another very dynamic sector that lives somewhat on the fringes of arbitration. However, the great unfinished business is administrative arbitration.

Who has been the person who has most influenced your professional career? Why?

I have been lucky enough to learn from many people, great legal professionals and excellent people, and I continue to learn every day. If I had to single out just one, I would single out one of my teachers, José María Cervelló, who sadly passed away a few years ago.

For me he was a reference in all aspects: in the State Bar, where I worked for some years, he was one of my trainers; in private law and arbitration, to which I have dedicated most of my life, he was one of the modernisers in Spain; and in teaching, he revolutionised legal learning in my country as the creator of the postgraduate legal studies of the Instituto de Empresa (IE), which is an internationally prestigious Spanish business school that today is among the most recognised in the world. At this school, the case study system was introduced many years ago. I was fortunate enough to be recruited to IE as a professor when I was still very young, and I am still there today.

In addition to being an excellent jurist and permanent innovator, he was an extraordinarily cultured man (PhD in Art History and music lover, among other things) and, above all, a great friend and an example as a person. It was a great privilege to know him and enjoy his friendship and appreciation.

What do you think is the main challenge facing Marketing and Communication in the legal sector in Spain?

As in everything else, we must not lose sight of the fact that honesty and rigour are essential. Furthermore, we must not fall into the temptation of over-information, giving equal importance to any news item and avoiding the current tendency to simplify very important news by means of telegraphic messages.

A book or film that has had a particular impact on you?

Many, because I’ve been a reader and film buff since I was a child. As for films, those about trials. I like both those that refer to historical events, such as the Nuremberg trials (“Victors or the vanquished”, for example), and those that are more commercial, as long as they emphasise the concept of justice rather than the individual characters.

In all of them, I saw the importance of justice for the individual human being and its influence on social life, as well as the important role of the lawyer and the judge. I would like to see a great film about a relevant arbitration.

Among the books, it is almost impossible to identify one. I have been very conditioned by those on history, as I think it is essential to know history, not only the history of your country but any time that has been relevant for man or for a culture.

I am also impressed by books that exalt values, those that show people’s capacity to give the best of themselves and to better themselves. There are many of them (Victor Frankl’s Man’s Search for Meaning, to name but one) but, unfortunately, they are not widely known or reprinted enough.