Analysis and forecast for 2025 regarding litigation in Spain and international arbitration

January 2025


As we have been doing for some years, we share Uría Menéndez’s views and predictions on the main developments and trends we expect to see in 2025 regarding litigation in Spain and international arbitration.


1. Civil proceedings

2. International arbitration and litigation

3. Digital sector. IP and unfair competition

4. Insolvency and restructuring

5. General contract terms and consumer affairs. Class actions

6. Civil litigation regarding competition law infringements

7. Product liability

8. European litigation

9. ESG


 

1. Civil proceedings

Initial stages of the procedural reforms introduced by Royal Decree-Law 6/2023 of 19 December. Approval of the expected Basic Law on the right to defence, which has important implications for professional secrecy. Entry into force of the Basic Law on the efficiency of the  legal system.

  • 2024 began with the initial stages of the procedural reforms introduced by Royal Decree-Law 6/2023 of 19 December, which approved urgent measures for the implementation of the Recovery, Transformation and Resilience Plan to improve the legal system, public service, the regional systems and public cultural funding. This regulation mainly aims to digitalise the legal system and make it more efficient. Regarding digitalisation measures, this is expected to be a long-term process that will be consolidated as resources become available. As to efficiency, some of the regulation’s keynovelties – such as the “pilot case” (procedimiento testigo) or extending the effects of judgments – have not yet acquired the practical importance that the legislature intended. Likewise, after some initial hesitation, companies have adapted satisfactorily to electronic notifications becoming the norm. These trends are expected to continue in 2025.
  • In November, the long-awaited Basic Law 5/2024 on the right to defence was published, which consolidates and raises to the rank of basic law the case law and constitutional interpretations on the various manifestations of the right to defence of the accused. Among its provisions, we should watch out for the how the courts apply in practice the provision that extends the time limits set for procedural actions. Also noteworthy are its provisions on the confidentiality of communications between lawyers, which should lead to more clarity on whether they can be used as evidence, which they cannot unless their provision or disclosure has been authorised in accordance with the applicable rules or the parties were informed that the communications could be used in legal proceedings. In addition, the regulation includes provisions aimed at making lawyers’ fees more transparent, reinforcing the importance of the engagement form and professional secrecy, expressly establishing the inviolability and secrecy of professional communications related to the right to defence or right not to make statements regarding facts of which the professional has become aware in performing his or her activity, save for the exceptions established in the law. All this enhances legal certainty regarding some very important aspects of the activities of legal professionals.
  • In the coming months, the main legislative development in this field will be the entry into force of the Basic Law on the efficiency of the legal system, which has been recently published. Although the intention to incorporate the transposition of the EU’s Representative Actions Directive (i.e. on class actions) into this law has been discarded, it still brings very significant changes. Particularly striking is the creation, on the one hand, of the new courts of first instance (Tribunales de Instancia), which form a collegiate judicial body designed to combine all the single-person courts from a judicial district, and, on the other, of justice offices in municipalities, to provide support in specific procedures. It also promotes alternative means of dispute resolution (ADR) in the civil and commercial fields and includes other procedural reforms in the areas of consumer protection, oral proceedings and electronic auctions, which are bound to significantly affect Spanish procedural practice.

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2. International arbitration and litigation

Consolidation of Madrid as an arbitration hub and increase in arbitrations in the renewable energy and oil & gas sectors. Application of the amended IBA Guidelines on Conflicts of Interest in International Arbitration. Further promotion of the use of alternative dispute resolution (ADR) in Spain. Progress in attempts to regulate third-party litigation funding at the European level.

  • In international arbitration, we expect to see Madrid consolidate its position as a hubas Spain’s reputation as an arbitration-friendly forum continues to grows, with CIAM-CIAR cementing its position as an increasingly important international arbitration centre.
  • The development of large renewable energy and construction projects in Latin America will likely increase the number of disputes in their various contractual phases. Large arbitrations will also continue in the oil & gassector, where supply contracts continue to give rise to a high level of litigation.
  • The amended IBA Guidelines on Conflicts of Interest in International Arbitration came into force in 2024. As they begin to be more widely used in 2025, we will be able to better understand how the changes will affect arbitral proceedings.
  • As in the rest of Europe, alternative dispute resolution (ADR) methods are being bolstered in Spain. As we mentioned above, the Basic Law on the efficiency of the legal system – which seeks to promote and modernise mediation in Spain and which, among its reforms, makes ADR a procedural requirement – is awaiting entry into force. We expect this to result in parties wanting their contracts for large construction projects to include staggered clauses that impose some prior steps to arbitration, such as dispute boards or mediation.
  • In investment arbitration, we expect more ESG arbitration to emerge as its rules have been harmonised globally, the standards have been incorporated into treaties, contracts and business practices, and litigation resulting from the energy transition has increased. As a new development, UNCITRAL (United Nations Commission on International Trade Law) Group III is also expected to continue its work and publish during 2025 a final draft of the Standing Mechanism articles, a new arbitration forum for international law disputes that, among other novelties, raises the possibility of creating a court for arbitral appeals to grant the possibility of recourse to a second instance.
  • As third-party funding has become more prevalent(through third-party dispute funding agreements), there has been an attempt to regulate this practice. In 2023, the European Union announced a proposal for a directive on responsible private litigation funding. This proposed directive is still in the pipeline and we expect efforts to address third-party litigation funding to intensify in 2025, both from a regulatory perspective and in the various arbitration centres.

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3. Digital sector. IP and unfair competition.

In addition to the usual needs in terms of advice on traditional IP and unfair competition, new areas of litigation are emerging that are more characteristic of the new digital environment, such as rights relating to the commercial exploitation of sporting events or – more generally speaking – entertainment, AI, personal data and unfair commercial practices with consumers.

  • In the field of IP, it is foreseeable that the civil courts will play a greater role in defining the criteria and legal limits of collecting societies’ tariffs, especially in light of these entities’ dominant role and the possible existence of anticompetitive practices in their negotiations and tariff demands in different sectors.
  • Uncertainty will continue at the national, European and international levels about the framing of generative AI training systems in intellectual property law and, in particular, about the application of text and data mining limits and about applicable law and jurisdiction issues. We will need to keep a close eye on the processing of the draft royal decree regulating the granting of extended collective licences in this field, which, for now, raises serious doubts about its timeliness, justification and regulatory fit.
  • We also expect there to be more enquiries about adapting to the AI Act, as well as a continued need for advice on the procurement of AI solutions for businesses.
  • In the media and entertainment sector, legal disputes concerning the commercialisation and exploitation of audiovisual rights, trademark rights, intellectual property rights and image rights regarding sports events and public entertainment in general, as well as fictional content, will become increasingly frequent.
  • Litigation related to data protection and consumer law infringements is likely to increase in 2025, either in the form of individual or class actions, or unfair competition actions.
  • Enquiries and litigation concerning the various aspects of personal data breaches (prevention, response and management of procedures) have also increased.
  • In unfair competition, we expect concerns about preventing unfair commercial practices in different areas of the consumer goods and services sector to remain, as well as regarding offences relating to misleading environmental claims (greenwashing) and unfair advertising on social media related to influencers. We have also been noticing a surge in litigation over breaches of secrecy and unlawful solicitation of employees and customers, which is consistent with increased dynamism among market players, particularly – but not exclusively – due to the impact of technology.
  • In more traditional areas of litigation, we will likely continue to see strategic and sometimes multi-jurisdictional disputes over patents, plant varieties, trademarks and, to a lesser extent, industrial designs (although, in view of recent developments by the EU legislature and the CJEU, industrial designs may begin to play a somewhat greater role in the digital environment than they have done to date). Disputes over honour and the right to rectification will continue to play an important role, especially as a result of possible legislative changes in this area.

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4. Insolvency and restructuring

Consolidation of preventive restructuring to the detriment of insolvency proceedings. Further extension of the accounting moratorium (moratoria contable)

  • In insolvency and restructuring, we expect the volume of restructuring operations to continue to grow in 2025 under the seismic transformation brought about by the well-known Law 16/2022 of 5 September to reform the revised text of the Insolvency Law, which has been in force for two only years. As we expected, increasingly more preventive restructurings are taking place. We hope that the courts will continue to clarify doubtful issues, which will foster confidence and legal certainty and, consequently, continue to promote this type of mechanism.
  • It is being confirmed that insolvency proceedings have become practically irrelevant and reserved for the most extreme insolvency situations.
  • The accounting moratorium (moratoria contable) specifically introduced in response to COVID-19 has been extended until the end of the financial year beginning in 2026 by Royal Decree-Law 9/2024 of 23 December, which adopts urgent economic, tax, transport and social security measures and extends certain measures to address situations of social vulnerability. This new extension allows companies that previously benefited from the moratorium to have hope of making a full recovery by avoiding restructuring or insolvency processes.

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5. General contract terms and consumer affairs. Class actions

Uncertainty about the future regulation of class actions after they were removed from the Draft Basic Law on the efficiency of the legal system. Individual litigation, both in the financial and other economic sectors, is expected to intensify.

  • The removal of the provisions on class actions from the Basic Law on the efficiency of the legal system has caused more uncertainty than expected for 2025. These provisions were removed because consensus could not be reached on the system of linking the redress action to the affected consumers (opt-in or opt-out) or the matter of third-party financing. We will have to wait and see whether this matter is taken up again in future regulations in similar or different terms.
  • That said, even though the current regulation is fairly scarce, we expect consumer-related class actions (mainly actions for injunctions) to continue to be prominent. One of the most significant milestones will be the Supreme Court’s decision in the class action brought against over 100 financial institutions in relation to floor clauses that will have to interpret the reasoning of the CJEU on transparency control in this type of action.
  • The CJEU will continue to play an important role in interpreting and applying consumer law. In 2025, judgments are expected to be handed down in response to the preliminary requests for a ruling that Spanish courts have made on the opening commission clause in mortgage loans (a matter on which there have already been rulings) and on the standing of a consumer association to sue on behalf of its members for investments in complex financial products (an issue, however, that is still awaiting indications from Luxembourg).
  • We expect individual litigation to remain high following the derailment of the planned new Spanish regulation on class actions and the witness procedure’s limited success to date. In the financial sector, the Supreme Court is expected to hand down the first rulings on the transparency of revolving card clauses, and a new ruling on the Spanish reference mortgage index clause following the latest CJEU ruling . Litigation on sale of insurance (or other products) linked and combined with loans, commissions and on consumer loans and credit for usury and the assessment of creditworthiness is not expected to subside in 2025.
  • Consumer litigation will continue to expand into the digital and data protection fields, as mentioned in section 3 above, as well as in the passenger transport, telecommunications, real estate, legal services, entertainment and entertainment sectors. This may be influenced by the increasingly active and important role of national and regional consumer authorities in initiating sanctioning proceedings for using unfair terms in consumer contracts. Litigation related to unfair commercial practices with consumers and the aforementioned greenwashingmay also increase.
  • From a regulatory perspective, we expect the trend of improving and ensuring the accessibility of information provided in contracting processes with persons with disabilities or vulnerable consumers to continue.    

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6. Civil litigation regarding competition law infringements

Ten years on from the transposition of Directive 2014/104/EU and after countless damages claims for competition infringements have been resolved, important questions still remain unanswered in the field of private enforcement of competition law.

  • Ten years after the publication of Directive 2014/104/EU, which transforms, tightens and homogenises the rules governing actions for damages arising from competition law infringements, and following the boom incivil litigation arising from the European Commission’s decision of 19 July 2016, which penalised the anticompetitive practices of truck manufacturers, Spanish courts are still contending with litigation for damages. Far from slowing down, the number of damages claims brought in 2023 and 2024 on the basis of domestic sanction decisions, such as those sanctioning car manufacturers, milk purchasers and cable manufacturers, has multiplied. The same fate has befallen entities sanctioned by the European Commission, such as certain banks on the Euribor panel. We therefore expect this trend to continue in 2025.
  • Precisely because of this increase in litigation, many issues remain unresolved. In recent years, debates have arisen that divide not only litigants, but also Spanish courts. For example, when does the limitation period for damages claims arising from conduct sanctioned by a CNMC decision begin to accrue? Some Spanish courts have equated domestic sanctioning decisions with European ones, and determine that the limitation period begins when the sanctioning decision is published. Others, however, insist that the purpose of the domestic administrative decision is critical to establishing when the limitation period begins to accrue. We expect this this doubt to be resolved in 2025 when the CJEU answers Commercial Court 1 of Zaragoza’s request for a preliminary ruling in the “car cartel” case.
  • Another challenge that claimants seeking damages are facing is the judicial estimation of damage, which, following the Supreme Court’s judgments of 14 June 2023 in the “truck cartel” case, has become a Solomonic solution when neither party is able to construct a counterfactualscenario. Claimants, with the help of their expert economists, therefore have the burden of presenting a reasonable and sufficiently well-founded estimate of the cost overrun (or lack of the same). If the court finds that neither party is able to quantify the damage or prove that it exists, it will most likely either dismiss the claim for insufficient evidence or estimate the damage itself.
  • Finally, despite legislative delays in transposing the Representative Actions Directive, damages cases for competition law infringements are giving rise to new forms of litigation: from consumer associations seeking to pass off damages for competition infringements as diffuse interests, to foreign litigation funds specialised in acquiring the right to claim of thousands of affected parties through share transfer contracts.

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7. Product liability

The Product Liability Directive is expected to significantly affect product liability litigation.

  • On 18 November 2024, the Directive of the European Parliament and of the Council on product liability was published, which will from 9 December 2026 repeal the current European and domestic regulatory framework and change the legal regime applicable to product liability claims.
  • This Directive will have numerous implications: the scope of application has been extended to cover new products, such as digital services (including software, operating systems, AI systems and digital manufacturing files, as well as related services); new potentially liable economic operators have been added (such as those responsible for programming, developing and updating digital services, as well as authorised representatives of the manufacturer, logistics service providers and online platform providers, under certain circumstances); the burden of proof is qualified (incorporating the possibility of requesting specific evidence and introducing a set of rebuttable presumptions regarding the defectiveness of the product and the causal link between that defectiveness and the damage); the types of damage covered have been expanded (incorporating medically certified moral damage and the destruction of data); and the liability periods have been extended (up to 25 years for latent defects).
  • The Directive will enter into force on 9 December 2026 and will apply to all products placed on the market or put into service after that date, which is also the deadline by which Member States must have transposed the Directive into domestic law.
  • The Directive seems to aiming for maximum harmonisation in this area, leaving little room for Member States to maintain or introduce more (or less) stringent provisions in their domestic law.

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8. European litigation

In 2025, the CJEU is expected to issue important rulings on, among other issues, the rule of law, citizenship of the Union and investments by third-country nationals, guarantees in respect of investigations initiated by the European Public Prosecutor’s Office, equality and non-discrimination, as well as freedoms in the internal market and professional partnerships.

  • In addition to the issues already mentioned in other sections, we expect two judgments to be handed down in 2025 in Commission v. Poland and Commission v. Hungary, which may constitute new milestones in the CJEU’s case law regarding the rule of law. This new potential case law would allow the actions of Member States to be scrutinised from an EU law perspective, even if the only connecting link between the case and EU law is that of the fundamental principles and values recognised in the Treaties.
  • In Commission v. Poland, the European Commission considers that the Polish Constitutional Tribunal, in two 2021 judgments, interpreted the Constitution of the Republic of Poland in relation to the requirements of EU law deriving from Articles 2, 4(3), 19.1 TEU and 47 of the Charter (rule of law; loyal cooperation; primacy, autonomy, effectiveness and uniform application of EU law; binding effect of judgments of the CJEU and guarantees of an impartial and independent court previously established by law) too restrictively and in a way that manifestly disregarded CJEU case law. The Commission also considers that the Polish Constitutional Tribunal failed to provide the guarantees of an impartial and independent tribunal previously established by law as a result of irregularities contrary to Polish constitutional law in the appointment of its judges and president, and that these give rise to reasonable doubts as to the judiciary’s impartiality and imperviousness to external factors.
  • The second case, Commission v. Hungary, in which the only connecting link to EU law would be Article 2 TEU, was already discussed in our projections for last year, but no judgment was handed down in 2024 as 17 Member States and the European Parliament – in addition to Hungary and the European Commission – intervened in the case.
  • 2025 could see a judgment handed down in Commission v. Malta. This case also raises very significant implications for the institutional aspect of EU law, as the European Commission is questioning Malta’s 2020 legislation granting Maltese nationality to third-country nationals who have made certain investments, even if they do not have an effective link with the Republic of Malta. Although this is a matter that has traditionally been considered to fall within the exclusive competence of the Member States, the European Commission considers that this legislation does not comply with the provisions of the Treaties on citizenship of the Union (Article 20 TFEU) and loyal cooperation (Article 4(3) TEU).
  • Among the preliminary ruling questions that should be resolved in 2025, we highlight the question posed by Central Criminal Investigating Court 6 of the Spanish National Court, regarding  whether Basic Law 9/2021 of 1 July on the application of Regulation 2017/1939 is compatible with that Regulation (which establishes the European Public Prosecutor’s Office). The issue revolves around this Basic Law imposing limitations to appeal specific investigative measures of the Deputy European Public Prosecutors (i.e. witness statements).
  • Also of note is the question referred for a preliminary ruling by the Østre Landsret (Denmark), in Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge, about whether the Danish Social Housing Act is compatible with Directive 2000/43 on the application of the principle of equal treatment between persons irrespective of racial or ethnic origin. The Act aims to eradicate what it calls “parallel communities”(previously referred to in the Act as ghettos). To this end, the Act provides that social housing will be progressively reduced by 2030, by terminating social leases, selling public land and other similar measures, in so-called “transformation areas” – defined as areas that, on the one hand, meet specific parameters regarding the residents’ integration into the labour market, level of crime, educational level and average income, and, on the other hand, where more than half of the residents are “immigrants from non-Western countries and their descendants”.
  • Finally, we also highlight the request for a preliminary ruling by the Bayerischer Anwaltsgerichtshof (Germany) in Halmer Rechtsanwaltsgesellschaft. This raises questions regarding the compatibility of the freedoms of movement under the Treaties and Directive 2006/123 on services in the internal market with domestic legislation that only allows certain professionals to join professional partnerships (of lawyers, in this case) set up as limited companies, and requires that the majority of votes and capital be reserved for partners practising the profession in which the company is engaged.

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9. ESG

Adoption of the Corporate Sustainability Due Diligence Directive (CS3D) and postponement of the entry into force of the European Regulation on the marketing of raw materials and products associated with deforestation.

  • On 13 June 2024, Directive (EU) 2024/1760 of the European Parliament and of the Council on Corporate Sustainability Due Diligence (CS3D) was formally adopted, requiring certain European and third-country companies to establish processes to identify, prevent, mitigate and remedy adverse human rights and environmental impacts that the companies themselves, their subsidiaries and entities with whom the work may cause. These obligations require concrete actions. The CS3D also requires companies to adopt a climate change mitigation transition plan.
  • The CS3D will be implemented in staggered annual periods between 26 July 2027 and 26 July 2029 depending on the size of the company, and domestic transposing legislation will establish the obligations and liability regime.
  • Non-compliance with the CS3D may be sanctioned with financial penalties that should be of a dissuasive amount (based on and up to the company’s worldwide net turnover).
  • In addition, infringing companies will be civilly liable for damage caused to third parties as a result of breaches of the CS3D. In any case, it has been clarified that there must be intent or fault, that there will be no civil liability when the damage is caused exclusively by business partners, and that compensation may not lead to overcompensation or punitive damages – although the injured party will be entitled to full compensation. The Directive introduces procedural measures that facilitate bringing liability actions in terms of limitation of actions, legal costs, injunctive relief, evidence and, in particular, mechanisms for trade unions or NGOs to bring such actions on behalf of injured persons.
  • Regarding Regulation (EU) 2023/1115 of the Parliament and of the Council concerning the marketing and export of certain commodities and products associated with deforestation, adopted on 31 May 2023, the European Commission has postponed its entry into force until 30 December 2025 for companies that are not SMEs, and until 30 June 2026 for SMEs. This will give companies trading cocoa, coffee, palm oil, rubber, soy, timber and cattle products an additional year to implement the mechanisms required.

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