I have read with interest the recent reflection by Ángela de Miguel Sanz (CEPYME President) on arbitration as a pending subject for SMEs in the face of Spanish judicial congestion. I agree with the diagnosis, but the problem goes far beyond the traffic jam in the courts.
The Spanish SME has internationalized its activity long before its legal architecture.
It sells in Mexico, hires technical talent in Argentina, provides services in Colombia, structures companies in Ireland, negotiates with investors in Miami and operates daily with digital platforms, cloud services, electronic contracts and distributed supplier chains. It does so with the speed that the digital economy allows. However, in too many cases, these contracts continue to be signed with a strictly local mentality: applicable law by default, courts chosen by inertia and absolute silence on venue, language, procedure, urgent measures, digital evidence and international execution.
When conflict arises, and in cross-border operations it arises frequently, it is no longer just a matter of judicial slowness. It is about lost neutrality, unpredictable cost, language, electronic proof, uncertain cross-border execution and, ultimately, business continuity.
At the domestic level, arbitration can alleviate the saturation of the courts. In the international arena it fulfills a deeper and more strategic function: it builds a neutral ground between parties that do not share the same legal system or the same trust in the national courts of the counterparty.
For a Spanish SME that contracts with a Mexican partner, an Argentine supplier, a Colombian client or a US investor, a well-designed arbitration clause is not a corporate luxury. It is the practical difference between having a real tool for contractual pressure from day one or being trapped in a national sentence that is difficult, slow or economically unviable to execute outside of Spain.
The value of international arbitration does not lie in citing large institutions as prestigious labels. It lies in designing the clause with operational rigor: choice of applicable law, neutral venue, common language, arbitration institution, number of arbitrators, abbreviated procedure, confidentiality, rules on digital evidence and a robust execution mechanism.
The 1958 New York Convention remains one of the great pieces of legal infrastructure of global trade, providing a widely accepted framework for the recognition and enforcement of foreign arbitral awards in 172 State parties. Within the European Union, the Brussels I bis Regulation offers a remarkably agile circulation regime for judicial rulings, but the majority of Spanish SMEs that internationalize do so towards markets where this agility does not exist and where the New York Convention continues to be the decisive tool.
I have been able to directly observe this evolution as an international observer at UNCITRAL, accredited by the Inter-American Bar Federation (Washington DC), among others, in the Working Group II (Dispute Settlement): current work includes decisive issues for digital SMEs: the recognition and enforcement of electronic arbitration awards, as well as electronic arbitration notifications. This work exactly reflects the reality of companies that close agreements in hours and generate evidence in cloud environments.
In contractual practice, no institution is suitable for all scenarios. The choice depends on who the counterparty is, where it is, what language it is negotiated in, and what execution mechanism is going to be truly effective.
For strictly domestic disputes, the Spanish Court of Arbitration can be an option especially close to the Spanish business fabric due to institutional roots and connection with the chamber ecosystem.
When the operation moves in the Ibero-American space, CIAM-CIAR, currently publicly projected as CIIAM, offers a platform that is committed to Spanish as the reference arbitration language and serious, specialized and culturally close mechanisms to operations between Spain and Latin America, further reinforced by the integration with CAM Santiago in 2025. An architecture that understands the times, the codes and the needs of those who contract in that axis.
If the counterparty is Anglo-Saxon, Asian or has a different legal tradition, the Court of the International Chamber of Commerce in Paris or the LCIA in London are perfectly consolidated options that the SME should know and evaluate. It is not about marrying any institution. It’s about knowing which one fits each contract and why.
ICSID, on the other hand, operates on another level: it is not an ordinary tool for commercial conflicts between SMEs, but a specific mechanism for investment differences between States and nationals of other States. It may be relevant in operations with a protected investor component, but should not be confused with the commercial arbitration that most companies need.
Spain still has an important cultural gap in this area. Many companies, even those that already invoice significantly outside, continue to see the dispute resolution clause as an almost decorative closing phrase. In reality, that clause is one of the most strategic decisions in the contract: it determines whether you will be able to defend yourself strongly, negotiate on true equality, or execute effectively when the relationship breaks down.
Not every contract needs arbitration. There are operations where ordinary jurisdiction is appropriate, others where a staggered clause, negotiation, mediation, arbitration, is optimal, and others where expedited procedure or precautionary measures are key.
The underlying question is not yes or no arbitration. The question is whether the SME is legally designing its conflict before the conflict exists.
Signing an international contract without providing for applicable law, seat, language, arbitration institution, procedure and execution mechanism is no longer a technical omission. It is a strategic weakness. The contemporary SME not only needs to sell more. You need to hire 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 the Comité Euro Americano de Derecho Digital — CEA Digital Law | International Observer at UNCITRAL: WG I – WG IV – and WG II → Dispute Settlement
