Every legal professional, and especially in arbitration, knows well who José Fernando Merino Merchán is. Lawyer of the Spanish Parliament and the Council of State, Professor of Constitutional Law and Director of the Chair of Arbitration at the Universidad Rey Juan Carlos (2004-2017), he is also an official mediator for the ISDE.
He is also the author of numerous monographs and articles on national and international arbitration, but in particular he is the author of mandatory books on arbitration: “Tratado de Derecho Arbitral”, 4th edition, Thomson-Reuters; “Estatuto y responsabilidad del árbitro”, 2004, Aranzadi.
We take advantage of these dates to address this interview we have conducted to address arbitration in the digital and blockchain era.
BACS has developed arbitration and mediation regulations, as well as an independent expert verdict, designed for groundbreaking legal proceedings such as blockchain, crypto assets, and even artificial intelligence. What have been the most important ideas in drafting these regulations?
BACS is a non-profit entity that offers a range of services to blockchain and crypto asset market operators, with a focus on arbitration and mediation.
For this reason, it has created arbitration and mediation regulations, as well as an independent expert verdict, allowing these operators to resolve disputes without resorting to state jurisdiction.
The most important goal guiding the development of these regulations is to establish procedures that are both protective and agile, which is ideal for a market with such fast-paced transactions.
It seems that the key features of these procedures are speed, specialization, and confidentiality. Can you clarify these characteristics for us?
Indeed, the key features of the procedures offered by BACS are the prompt resolution of conflicts, the high expertise of the mediators and arbitrators involved, and the utmost confidentiality. These features are notably absent in judicial processes, which are often slow, lack specialization, and have little to no confidentiality.
The procedure for an independent expert verdict appears very original and unique worldwide. What are the advantages of this procedure?
The Independent Expert is a highly innovative and practically unprecedented figure that fits perfectly with the needs of the blockchain and crypto asset market. It involves market operators mutually agreeing to appoint a highly qualified and independently verified individual to issue a verdict on the raised dispute. This verdict is binding if both parties have agreed to it. The assurance of this figure lies in being widely recognized as an authority in the field on which it issues its verdict.
Do you believe that an international arbitration tribunal specialized in Crypto assets (and new technologies) can be highly relevant in the coming years?
Certainly. It is such a novel and decentralized market that success can only be achieved through specific alternative dispute resolution systems, such as those offered by BACS. If arbitration, mediation, and independent expert services were not available in the markets we are discussing, conflicts would take years to resolve, or they may remain unresolved.
What types of cases can be brought before the arbitration tribunal?
Above all, it should be clear that market operators must voluntarily enter into an arbitration, mediation, or independent expert agreement offered by BACS. Once a conflict arises, all disputes of a financial and patrimonial nature can be submitted to these resolution systems.
The main headquarters of the Tribunal or Court is in Madrid. Additionally, they have branches in Singapore and Lisbon. What do you think of Madrid as a venue for arbitration?
It is an excellent choice because in Madrid, actions for annulment that may be filed against the awards are resolved by the Superior Court of Justice of Madrid, which handles them in a very short period. Additionally, if the judicial enforcement of awards is required, Madrid has a specific enforcement court for awards, such as the 101 bis court. This ensures a fast, specialized, and quality service in Madrid. Also, the emerging Ibero-American market should not be overlooked.
What are the challenges faced by such an ambitious project?
Being an internationally expanding and loosely regulated market, it is necessary to provide training, advice, and conflict resolution procedures that, as mentioned earlier, are agile, protective, and of high quality.
The team leading the Tribunal is quite competent. How was such a good group achieved?
Through the recruitment of a team with extensive knowledge in the world of ADRs and the crypto asset market. It is essential to consider that the value of arbitration and mediation is as good as its arbitrators and mediators. That’s why BACS has surrounded itself with a team of highly competent individuals in these areas, offering maximum technical, legal, and ethical quality.
Additionally, BACS provides training to educate its arbitrators. Can you clarify what this entails?
BACS aims for excellence, and related to the above, it is crucial that arbitrators and mediators on BACS’s list are in continuous training. The specialization of these professionals provides guarantees and legal security to operators requiring BACS services. Therefore, BACS will periodically organize training courses for professionals who can then offer their services as arbitrators, mediators, or experts.
