ARBITRATION IN THE DOCTRINE OF THE SPANISH CONSTITUTIONAL COURT

Abstract

The work we present deals with the constitutional fit of arbitration as a para-procedural institution, apart from due process and its relationship with the right to effective judicial protection, proclaimed in art. 24 of the Spanish Constitution. The arbitration that the doctrine of the Spanish Constitutional Court has been constructing is analyzed as a space reserved exclusively for the autonomy of the parties, almost completely excluding jurisdictional control. In this way, the Spanish Constitutional Court has been building a doctrine on arbitration that can generate a reality of private law removed from the necessary jurisdictional control and, therefore, outside the walls of the constitutional order. In effect, arbitration submission clauses prevent access to jurisdiction also to control the contract itself in which said clauses are established. Faced with the justification of arbitration as a specific waiver of the right to effective judicial protection based on the principle of autonomy of the parties, we must argue that everyone - powers and persons, whether natural or legal - must submit to the constitutional order, considering in everything case the right to jurisdictional protection as inalienable. We conclude that arbitration cannot be built as an institution outside the Constitution, in such a way that it could end up constituting a subterfuge to prevent access to the courts, and for them to determine whether legal relationships are protected by the legal system or not and, ultimately, the control of constitutionality. In this way, we may be witnessing the construction of a system that not only prevents access to justice, but also all constitutionality control. In such a case, an authentic space outside of constitutional control would be created and validated. Although the Constitutional Court reasons that arbitration has its constitutional protection in the principle of autonomy of the will -ex-art. 10 EC-, it is no less true that any contractual activity carried out in the field of private law under the aforementioned principle is susceptible to judicial prosecution. Prosecution in accordance with the Law and the Constitution. And that, ultimately, said judicial activity will always be reviewable by constitutional jurisdiction.