Desaconsejable interpretación restrictiva del alcance del convenio arbitral "ratione materiae"la diferenciación en el ámbito del proceso constructivo de la responsabilidad "ex contractu" y "ex lege" (LOE)

Abstract

In the field of construction there are complex relationships that affect the different parties involved in it, not only because of the coexistence of different liability regimes such as the ex lege liability under the Spanish Construction Act (LOE) or the strictly contractual one, but also because it is usual for the parties involved in it to enter into independent and differentiated agreements. In this context, and even though contracts that include arbitration agreements for the resolution of disputes are becoming more and more common, in this area in which there is this dual dimension of contractual and legal (LOE) liability, complex procedural situations can arise when not all the construction agents have opted to sign the arbitration agreement, and it is of vital importance to determine the scope of the agreement for those who have signed it. This is precisely the issue which will be the subject matter of analysis in this article reviewing the Auto no. 53/2021, of 16 February, of the Provincial Court of Valencia (Eighth Section), whose restrictive interpretation of the scope of the arbitration agreement led, in practice, to serious problems of procedural efficiency and effectiveness.