Recent developments on the international role of the Spanish courts

By Javier Fernández-Samaniego, Pablo Berenguer


The entry into force of both the Organic Act 7/2015 modifying the Organic Act on the Judiciary, and the Act 29/2015 on International Legal Cooperation in Civil Matters, represents a deep change into the international role of the Spanish courts, updating its international jurisdiction as well as the recognition and enforcement of foreign judgments regime, along the lines of Regulation (EU) 1215/2012. Foreign companies with interests in Spain will get easier access to Spanish courts.

Taking into account the progressive internationalization of personal and business relations, on July 2015 the Spanish Parliament has passed two pieces of legislation that deeply modify the international role of the Spanish courts. On the one hand, Organic Act 7/2015 modifying the Organic Act on the Judiciary will enter into force on October 1st amending the criteria regarding international jurisdiction, that is, those determining which international controversies are to be solved by Spanish courts. On the other hand, Act 29/2015 on International Legal Cooperation in Civil Matters entered into force on August 20th using a broad concept of international legal cooperation that involves lis pendens, recognition and enforcement of judgments as well as proof of foreign law, amongst other aspects.

International jurisdiction of Spanish courts

As for exclusive jurisdiction forums, there are two novelties: on the one hand, the new law adds that the recognition and enforcement in Spain of foreign mediation agreements is to be dealt with by Spanish courts. On the other hand, in line with Article 24.1 of Regulation (EU) 1215/2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the law states that regarding tenancies of real estate concluded for a private use for a maximum of 6 consecutive months, the Spanish courts shall also have jurisdiction, provided the tenant is a natural person and both parties are domiciled in the same State. The previous version did not have any particular provisions regarding temporary tenancies.

The regulation of submission agreements to Spanish courts has been detailed. Following Regulation (EU) 1215/2012, the law defines what might be considered an express submission agreement. It needs to be (i) in writing either in one of the clauses of a contract or in an independent agreement or (ii) verbally with a written confirmation; (iii) or in a form according with practices established by the parties between themselves; (iv) or in any form the parties are used to or should be aware of and is regularly observed in international trade or commerce. Communications by electronic means, providing a durable record, are also considered as an agreement in writing. The law expressly states that these agreements will prevail to any non-exclusive forum established by the law.

The law maintains the general forum of the domicile of the defendant, stating that a person will be domiciled in Spain when it is its permanent residence. Regarding companies, domicile will be determined by its headquarters, central administration or principal place of business. Besides this, the amendment introduces a specialty regarding cases involving a plurality of defendants: provided one of them is domiciled in Spain, all of them can be sued here as long as only one action is brought or if there are several, they are so closely connected it is expedient to hear and determine them together.

Amendments also affect special forums determined by the object of the claim. The new law states that Spanish courts will have jurisdiction over contractual obligations, when the obligation object of the claim has been or shall be fulfilled in Spain. The criteria are no longer the place of conclusion of the contract nor any obligation derived from the contract. The law clearly specifies that it needs to be the obligation object of the claim.

Rules regarding insurance claims have also been developed. Prior to the amendments, Spanish courts were competent regarding controversies in which both the insured and the insurance company were domiciled in Spain. Now, if the insured, the policy holder or the insurance beneficiary are domiciled in Spain, Spanish courts will be competent. Furthermore, the new law has extended Spanish jurisdiction to those cases in which the harmful event occurred in Spain and it is a liability insurance contract related to real estate property or, regarding civil liability insurance cases, provided Spanish courts were competent to deal with actions derived from non-contractual obligations brought by the damaged party against the insured.

The new law also establishes, following the interpretation of the prevailing doctrine, that Spanish courts will be competent to adopt precautionary measures not only regarding assets or people in Spanish territory and which need to be taken in Spain but also if they are competent to deal with the merits of the case.

Another novelty has been introduced, Spanish courts will not be able to decline their jurisdiction when the litigation is connected with Spain and the tribunals of other States connected to the matter have declined their jurisdiction. They will not be able to decline jurisdiction either, regarding the recognition and enforcement of judicial resolutions, arbitral awards and mediation agreements issued by foreign courts.

Recognition and enforcement of foreign resolutions by Spanish Courts

Taking into account the existence of numerous treaties and international agreements on the matter as well as local special legislation, the new Spanish Act on International Legal Cooperation in Civil Matters will only be applied if there are no European, international or internal regulations applicable to the matter, mainly:

  • Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (12 December 2012), Regulation (EC) 1393/2007 on the service of documents (13 November 2007) and (EC) Regulation 1206/2001 on the taking of evidence in civil or commercial matters (28 May 2001).
  • The three Hague Conventions on the recognition and enforcement of foreign judgments in civil and commercial matters (1 February 1974), on the taking of evidence abroad (18 March 1970) and on the service of documents abroad (15 November 1965).
  • Spanish Acts on Insolvency (22/2003), Consumers Defence (1/2007), Arbitration (60/2003) or Voluntary Jurisdiction (15/2015). 

One of the central issues regulated by the Act is the procedure of recognition (exequatur) and enforcement of other States judgments. The law has clarified in the same terms of the Regulation (EU) 1215/2012 the concepts of judgment, court settlement and authentic instrument, among others. The exequatur proceedings are simplified; it is now possible to request recognition and enforcement of a resolution in the same application, but the latter will only be dealt with once the exequatur has been issued. The law allows also requesting, at that time, the adoption of precautionary measures. The request shall be accompanied by the following documents:

  1. original or authenticated copy of the foreign resolution;
  2. document demonstrating the foreign resolution is final and enforceable and
  3. the relevant translations which do not need to be sworn translations, although the counterpart will be able to challenge them if considered not accurate.

Once the claim has been admitted, it will be communicated to the other party who will be able to object within 30 days on the grounds of the following arguments:

  1. lack of authenticity of the resolution,
  2. incorrect summoning of the defendant,
  3. the resolution not being final and enforceable.

With class actions being increasingly common, special rules regarding the recognition of foreign resolutions dictated as a consequence of this type of action have been included. For those affected who were not part of the class action to benefit from the enforcement of these resolutions in Spain, the Act establishes the following requirements: (i) the foreign class action shall have been published in Spain through means equivalent to those required by Spanish law and (ii) the aforementioned affected parties must have had the same opportunities to join or not such class action as those domiciled in the State where the action was brought. Foreign resolutions issued as a result of class actions will not be recognised in those cases where the jurisdiction of the foreign Court was not based in a forum equivalent to those established by Spanish legislation.

Another essential point this Act deals with, to avoid the possibility of obtaining contradictory decisions as a consequence of the existence of parallel civil procedures in different States, is international lis pendens and related actions. The Act states that Spanish Courts may declare a stay of proceedings when a lis pendens situation arises and all the requirements are met: the jurisdiction of the foreign court needs to be based on a reasonable connection with the procedure, the recognition in Spain of a foreign Court judgment has to be foreseeable and finally, the Spanish Court must consider that the stay of the procedure is necessary for a proper administration of justice (as defined by Recital 24 of the aforementioned Regulation (EU) 1215/2012).

Regarding the proof of foreign law, the Act does not change the system established by the Civil Procedure Act according to which the validity and content of foreign law needs to be proven. There are two main novelties: first, as an exception, Spanish Law will be applied in order to ensure effective judicial protection in the event that the parties are unable to provide such proof. Second, Spanish courts (and also Spanish notaries and registrars) may carry out foreign law information requests to foreign authorities, through the Spanish Ministry of Justice.