Spanish SMEs already compete globally. Their contracts do not – yet

I read with interest the recent piece by Ángela de Miguel Sanz (President of CEPYME) on arbitration as unfinished business for SMEs in the face of congestion in the Spanish courts. I agree with the diagnosis, but the problem goes well beyond court backlogs. Spanish SMEs have internationalised their business long before their legal architecture. They sell in Mexico, hire technical talent in Argentina, provide services in Colombia, set up companies in Ireland, negotiate with investors in Miami and work every day with digital platforms, cloud services, electronic contracts and distributed supply chains. They do so at the speed the digital economy allows. Yet in far too many cases they still sign those contracts with a strictly local mindset: governing law by default, courts chosen out of habit, and complete silence on the seat, language, procedure, urgent relief, digital evidence and international enforcement. When a dispute arises – and in cross-border transactions disputes arise often – the issue is no longer just slow courts. It is lost neutrality, unpredictable costs, language, electronic evidence, uncertain cross-border enforcement and, ultimately, business continuity. Domestically, arbitration can ease the pressure on overloaded courts. Internationally, it serves a deeper and more strategic purpose: it creates neutral ground between parties who share neither the same legal system nor the same trust in the national courts of the other side. For a Spanish SME contracting with a Mexican partner, an Argentine supplier, a Colombian client or a US investor, a well-drafted arbitration clause is not a corporate luxury. It is the practical difference between having real contractual leverage from day one and being stuck with a national court judgment that is difficult, slow or uneconomic to enforce outside Spain. The value of international arbitration does not lie in name-checking major institutions as badges of prestige. It lies in drafting the clause with operational rigour: choice of governing law, a neutral seat, a common language, the arbitral institution, the number of arbitrators, an expedited procedure, confidentiality, rules on digital evidence and a robust enforcement mechanism. The 1958 New York Convention remains one of the great pieces of legal infrastructure underpinning global trade, providing a widely accepted framework for the recognition and enforcement of foreign arbitral awards in 172 States parties. Within the European Union, the Brussels I bis Regulation offers a remarkably swift regime for the circulation of court judgments, but most Spanish SMEs that go international do so towards markets where that speed does not exist and where the New York Convention remains the decisive tool. I have been able to follow this evolution first-hand as an international observer at UNCITRAL, accredited by the Inter-American Bar Association (Washington DC), among others, in Working Group II (Dispute Settlement), whose current work includes issues of decisive importance for digital SMEs: the recognition and enforcement of electronic arbitral awards and electronic notices in arbitration. That work reflects precisely the reality of companies that close deals in hours and generate evidence in cloud environments. In contractual practice, no single institution suits every scenario. The choice depends on who the counterparty is, where it is based, the language of the negotiation and which enforcement mechanism will actually work. For purely domestic disputes, the Spanish Court of Arbitration may be a particularly close fit for Spanish business, thanks to its institutional roots and its links with the chamber of commerce network. When the transaction takes place in the Ibero-American sphere, CIAM-CIAR, currently presented publicly as CIIAM, offers a platform committed to Spanish as the reference language of arbitration and to serious, specialised mechanisms that are culturally attuned to transactions between Spain and Latin America, further strengthened by its integration with CAM Santiago in 2025. It is an architecture that understands the timing, the codes and the needs of those who contract along that axis. If the counterparty is Anglo-American, Asian or from a different legal tradition, the ICC International Court of Arbitration in Paris or the LCIA in London are well-established options that SMEs should know about and consider. The point is not to commit to any one institution. It is to know which one fits each contract, and why. ICSID, by contrast, operates on a different plane: it is not an ordinary tool for commercial disputes between SMEs but a specific mechanism for investment disputes between States and nationals of other States. It may be relevant in transactions involving a protected investment, but it should not be confused with the commercial arbitration that most companies need. Spain still has a significant cultural gap in this area. Many companies, even those that already generate substantial revenue abroad, still regard the dispute resolution clause as an almost decorative closing line. In reality, that clause is one of the most strategic decisions in the contract: it determines whether you will be able to defend yourself robustly, negotiate on a genuinely equal footing or enforce effectively when the relationship breaks down. Not every contract needs arbitration. In some transactions the ordinary courts are the right choice; in others a multi-tier clause (negotiation, mediation, arbitration) works best; and in others expedited procedures or interim measures are key. The underlying question is not arbitration, yes or no. The question is whether the SME is designing the legal framework for its dispute before the dispute exists. Signing an international contract without providing for governing law, seat, language, arbitral institution, procedure and enforcement mechanism is no longer a technical oversight. It is a strategic weakness. Today’s SMEs do not just need to sell more. They need to contract better. Because in a digital, cross-border and contractually fragmented economy, legal prevention is no longer a formality. It has become a decisive competitive advantage. Dr Antonio Tejeda Encinas | CEO of META Channel Corporation | President of CEA Digital Law (Euro-American Committee of Digital Law) | International Observer at UNCITRAL: WG I – WG IV – and WG II → Dispute Settlement