What are the differences between an arbitrator and a judge?

Question

José Manuel Alburquerque · Accepted Answer

A judge is part of the judiciary and the parties do not choose him or her. An arbitrator, on the other hand, is chosen by the parties or by the institution they designate, provided that both have agreed to arbitration. Arbitrators are paid by the parties, the procedure is confidential and it usually ends sooner than court proceedings with their appeals. The most important difference lies in what happens afterwards, because a court judgment can be appealed, whereas the arbitral award (“laudo”), which is the arbitrator's decision, can only be set aside on very limited grounds, without any review of whether the arbitrator got the merits right. In addition, an arbitrator cannot use force to make anyone comply with the decision and, if the losing party does not comply, a judge must be asked to enforce the award. Who decides The differences start with the person who decides: A judge is a career professional in the service of the State. The case reaches the judge under the rules for allocating cases among the courts and the parties cannot choose who it will be. An arbitrator can be anyone in full exercise of their civil rights, whether or not they are a lawyer. Arbitrators are chosen by the parties, either directly or through an arbitral institution, which is a body that organises arbitrations. Unless otherwise agreed, a sole arbitrator deciding according to law must be legally qualified and, if there are three or more arbitrators, at least one of them must be. Both must be independent and impartial. If they are not, they can be challenged, which means asking for them to stand down from the case. As the arbitrator can be chosen, the matter can be entrusted to someone who knows the subject well, for example an engineer in a dispute over building work, as part of a panel of three arbitrators that includes a legally qualified member. But arbitration is only possible in matters that the parties are free to dispose of. How the decision is made A judge follows the procedure laid down in the “Ley de Enjuiciamiento Civil” —Spain's Civil Procedure Act— and trials are held in public. In arbitration, the parties can agree on the procedure, the place and the language. If they do not, these are set by the arbitrator, who must always treat the parties equally and give them a sufficient opportunity to defend themselves. Arbitration is also confidential. A judge decides by applying the law. So does an arbitrator, unless the parties expressly authorise him or her to decide on grounds of fairness (“en equidad”), that is, according to his or her own view of what is just. A judge delivers a judgment and an arbitrator makes an award. A final judgment and an award both have the effect of res judicata, which prevents the same matter from being litigated again. What happens afterwards A court judgment can in many cases be appealed to the “Audiencia Provincial”, the provincial appeal court, which re-examines the case. Sometimes a further cassation appeal can then be brought before the “Tribunal Supremo”, Spain's Supreme Court, or, if Catalan civil law applies, before the “Tribunal Superior de Justicia de Cataluña”, the High Court of Justice of Catalonia. An award, by contrast, cannot be appealed. The only option is to apply for it to be set aside, within two months of its notification, to the Civil and Criminal Chamber of the High Court of Justice of the autonomous community (region) where it was made. That court does not review whether the arbitrator was right, but whether any of the grounds provided for by law applies, such as these: That there was no arbitration agreement or that it was not valid. That a party was unable to defend itself, for example because it was not notified of the arbitration. That the arbitrator decided issues that were not submitted to him or her or that cannot be referred to arbitration. That the award is contrary to public policy, that is, to the basic principles of our legal system. Nor can an arbitrator compel compliance with the decision. If the losing party does not comply, enforcement must be sought from the civil section of the first-instance court (“tribunal de instancia”, the name now given to the former courts of first instance) for the place where the award was made. The award can be enforced even if an application has been made to set it aside.