However, the same report acknowledges that during the same period, the number of cases pending resolution had increased by 6%. This is no surprise, as there are just 11.92 judges per 100,000 inhabitants (European average: 22) and the judicial system is notoriously inundated.
In this context, arbitration emerges as a more efficient option for dispute resolution in national and international business relationships. Does the use of arbitration, however, offer the parties the same advantages as those conferred to MASC in civil proceedings, namely the achievement of amicable solutions, the reduction of procedural costs and the preservation of contractual relationships?
The answer is clear: arbitration has the content that the parties wish to give it, both in its preliminary phases and when exercised and applied, with no limits other than those set by the applicable laws. Thus, the parties can configure the MASC they desire, for example, they can agree on a mandatory preliminary negotiation or mediation phase, and they can design them as a condition of admissibility of the arbitration itself. These agreements are set out in what are known as escalation clauses.
Arbitration courts publish model escalation clauses, for example the International Ibero-American Arbitration Centre of Madrid (Centro Internacional e Iberoamericano de Arbitraje de Madrid, CIIAM): https://ciiam.org/arbitraje/clausulas-modelo/). These model clauses can be used as they are by the parties or adapted to their wishes.
In summary, in civil law matters the legislator has conditioned the admissibility of a claim to the application of a MASC before filing the claim. In contrast, in arbitration, it has always been possible to agree on such an alternative dispute resolution measure and design it to be (or not to be) a condition of admissibility. However, as much in the past as in the present, clauses drafted in this way were only included as a result of the will of the parties and not by virtue of legal imposition.