Marco de Benito
I hold the Jean Monnet Chair of European Civil Procedure (civilprocedure.ie.edu) at IE University, in Madrid. My areas of interest include international arbitration, comparative procedural law, European private law and legal history.
I earned my Dr. iur. from Comillas Pontifical University in 2010. I spent the 2008-09 academic year at Yale Law School, where I co-chaired the Yale Forum on International Law. During my doctoral studies I also spent several funded research stays at the Max Planck Institute for Comparative and International Private Law in Hamburg. Since then, I’ve taught or spoken at universities such as Harvard, Bologna, Florence, Pavia, Maastricht and other universities in Mexico, Guatemala, Peru, Argentina and China.
I’ve authored monographs on arbitration agreements (foreword by Juan Fernández-Armesto) and European justice systems (foreword by Michele Taruffo), co-authored a handbook on European legal history, and coordinated two collective works on international arbitration.
I’ve practiced international arbitration for nearly two decades. In 2018 I opened my own boutique as an arbitrator (marcodebenito.com). I have acted as an arbitrator and represented clients in the M&A, distribution, financial, construction, energy and infrastructure sectors in Paris, London, Geneva, Milan, Madrid and Miami, under the ICC, UNCITRAL, Swiss Rules, and the Rules of the Milan Chamber, applying Spanish, Italian and Austrian law, as well as the lex mercatoria.
I’ve also consulted for the Justice Commission of the Spanish Congress and for the Argentine Cabinet on the reform of their respective laws on arbitration.
Since 2015 I’m an appointed member of the Procedural Law Board of the Spanish Royal Academy of Jurisprudence and Legislation.
I’m fluent in English, Spanish and Italian, and can read German, French and Portuguese.
Supervisors: Andrés de la Oliva Santos
Address: IE University
María de Molina 31 bis
28006 Madrid
I earned my Dr. iur. from Comillas Pontifical University in 2010. I spent the 2008-09 academic year at Yale Law School, where I co-chaired the Yale Forum on International Law. During my doctoral studies I also spent several funded research stays at the Max Planck Institute for Comparative and International Private Law in Hamburg. Since then, I’ve taught or spoken at universities such as Harvard, Bologna, Florence, Pavia, Maastricht and other universities in Mexico, Guatemala, Peru, Argentina and China.
I’ve authored monographs on arbitration agreements (foreword by Juan Fernández-Armesto) and European justice systems (foreword by Michele Taruffo), co-authored a handbook on European legal history, and coordinated two collective works on international arbitration.
I’ve practiced international arbitration for nearly two decades. In 2018 I opened my own boutique as an arbitrator (marcodebenito.com). I have acted as an arbitrator and represented clients in the M&A, distribution, financial, construction, energy and infrastructure sectors in Paris, London, Geneva, Milan, Madrid and Miami, under the ICC, UNCITRAL, Swiss Rules, and the Rules of the Milan Chamber, applying Spanish, Italian and Austrian law, as well as the lex mercatoria.
I’ve also consulted for the Justice Commission of the Spanish Congress and for the Argentine Cabinet on the reform of their respective laws on arbitration.
Since 2015 I’m an appointed member of the Procedural Law Board of the Spanish Royal Academy of Jurisprudence and Legislation.
I’m fluent in English, Spanish and Italian, and can read German, French and Portuguese.
Supervisors: Andrés de la Oliva Santos
Address: IE University
María de Molina 31 bis
28006 Madrid
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One of the activities of the Chair is the IE Civil Procedure Series, a series of roundtables aimed at exploring the Rules together with the leaders in the field.
Books by Marco de Benito
aplicable en el arbitraje internacional: enfoques cruzados, Lima: Biblioteca de Arbitraje del Estudio Mario Castillo Freyre, 2021, volumen 96, págs. 11-18.
Offering a readily graspable and sound structure, chapters are organized according to the civil law systems and common law systems. Each chapter is built around the evolution of the four sources of the law: legal science, legislation, courts and customary law, set chronologically against the relevant historical context.
Throughout this in-depth presentation of the key determinants in European legal history, Bart Wauters and Marco de Benito allow readers to understand how the law arose and evolved in Europe as a shared language, of which its different national laws are but dialectal expressions – with the unique exception, perhaps, of English common law, whose peculiarity is likewise due to accidents of history which are themselves explored.
With its elegant comparative approach, this book will appeal to European Law students and scholars looking for a concise, yet academically sound, account of the history of law in Europe.
My Books Reviewed by Marco de Benito
One of the activities of the Chair is the IE Civil Procedure Series, a series of roundtables aimed at exploring the Rules together with the leaders in the field.
aplicable en el arbitraje internacional: enfoques cruzados, Lima: Biblioteca de Arbitraje del Estudio Mario Castillo Freyre, 2021, volumen 96, págs. 11-18.
Offering a readily graspable and sound structure, chapters are organized according to the civil law systems and common law systems. Each chapter is built around the evolution of the four sources of the law: legal science, legislation, courts and customary law, set chronologically against the relevant historical context.
Throughout this in-depth presentation of the key determinants in European legal history, Bart Wauters and Marco de Benito allow readers to understand how the law arose and evolved in Europe as a shared language, of which its different national laws are but dialectal expressions – with the unique exception, perhaps, of English common law, whose peculiarity is likewise due to accidents of history which are themselves explored.
With its elegant comparative approach, this book will appeal to European Law students and scholars looking for a concise, yet academically sound, account of the history of law in Europe.
The author maintains that the key to efficiency in arbitration does not lie in the arbitrator's purely procedural, external, quantitative intervention, consisting in pruning deadlines or probative possibilities, but rather in an adequate and early qualitative intervention. This early intervention can contribute to harmonize disparate legal and terminological elements, clearly set the terms of the debate on the merits of the dispute, and trace the channels through which this debate will run. In addition, since arbitration is truly a justice system, efficiency requires the participation of all those who intervene in the arbitration process: counsel, arbitrators, and especially judges. The greater or lesser efficiency of arbitration is dependent on the loyalty of each and all of them to arbitration as a process and as a system.
Arbitration agreements and arbitration proceedings constitute two separate, albeit interrelated, legal realities. This essay aims at clarifying the connection between both. Arbitration agreements and proceedings do not present a cause and effect relationship. This essay demonstrates that what gives rise to an arbitration is simply the commencement of that arbitration – nothing else. The claim is, for arbitral as well as for judicial proceedings, the only origin of any procedural phoenomenon. This is so because commencement of an arbitration entails the exercise of the ‘right of action’ − the right to promote jurisdictional activity. The arbitration agreement subjects the exercise of that right to the condition (‘burden’) of doing so precisely through arbitration. However, in arbitration, it is the right of action, and not the arbitration agreement, that gives rise to all procedural matters.
A bill to reform the Spanish Arbitration Law (http://www.congreso.es/public_oficiales/L9/CONG/BOCG/A/A_085-01.PDF) is currently under discussion in the Spanish Parliament. This essay is a critical analysis of the main amendments proposed by the bill. In some cases alternative solutions are proposed with the aim of improving the text of the Law. In particular, three aspects are examined: a new distribution of competences concerning judicial support and control of arbitral proceedings, most of which are vested on the regional high courts of justice; the means for a defendant to challenge the jurisdiction of a court based on the existence of an arbitration agreement; limitations to arbitration in equity compared to arbitration in law in domestic arbitral proceedings."
The principle of separability (a more suitable name than ‘autonomy’) of arbitration clauses cannot be used to answer in the affirmative. Separability is just a legal fiction with a limited purpose: to allow for the competence/competence rule. In particular, separability does not mean that arbitration clauses are self-sufficient in all regards, and that arbitration agreements always create two reciprocal obligations to arbitrate.
Consideration of both the validity of unilateral clauses and the limited scope of the principle of separability, as well as the legal regime of reciprocal obligations in the Spanish Civil Code, leads to the conclusion that arbitration agreements do not create legally reciprocal obligations to arbitrate.