International Jurisdiction and Recognition of Foreign Judgments in Spain
PEC 1: International Jurisdiction and Recognition of Foreign Judgments
International Jurisdiction
A. Judgement of the Supreme Court, Civil Division, 14 March 2007 (Law 8193/2007)
1. Concept of “Effectively Repeal the Provisions of Submission”
The resolution highlights the derogatory effect of contractual submission clauses. In this case, the clause referred to dispute resolution bodies in Switzerland, either arbitral or judicial. The court emphasizes that regardless of the specific body chosen, the effect is the same: it confers jurisdiction on the chosen forum and removes it from other courts that might have had jurisdiction based on other criteria.
The autonomy of the will, expressed through contractual submission, allows individuals to choose their preferred dispute resolution method. When based on community law instruments, the derogatory effect is recognized by Spanish courts. In cases of submission to courts of third states without a shared system of international jurisdiction, the derogatory effect is recognized based on the jus cogens nature of Spanish international judicial rules.
2. Could Spanish Courts Hear the Case Based on Implied Submission?
To analyze the international jurisdiction of Spanish courts, we need to consider the following data:
- Actor: Mr. Marcelino (nationality and habitual residence unknown)
- Respondent: Mr. Clemente (nationality unknown, address in Spain)
- Type of Action: Civil/Commercial (termination of a contract of sale of shares of a foreign company)
- Other: Existence of a contractual term favoring Swiss judicial or arbitral bodies
- Start of operation: 1995 or 1998 (unclear)
The criterion of tacit submission, as outlined in Article 18 of the Brussels Convention of 1968 (CB68), Article 18 of the Lugano Convention of 1988 (CL88), and Article 21.2 of the Organic Law of the Judiciary, implies that the jurisdiction of a court chosen by the actor can be established if the defendant accepts and recognizes it. In this case, the defendant challenged the jurisdiction, so tacit submission does not apply.
If the defendant had not challenged jurisdiction based on the Swiss clause, Spanish courts could have heard the case based on tacit submission under Article 18 of the CB68. Since the defendant’s address is in Spain, either the CB68 or the CL88 would have applied, leading to the same outcome.
It’s important to note that express submission takes precedence over tacit submission due to temporal reasons.
B. Judgement of the High Court of Madrid, Sala de lo Social, of September 31, 2004 (Act 194033/2004)
3. Applicability of the Brussels Convention of 1968
The Brussels Convention of 1968 was not applicable to this case as it had been replaced by Regulation 44/01 on March 1, 2002. The lawsuit was filed on July 29, 2003, after the regulation’s entry into force.
While the High Court of Justice of Madrid’s reference to the Brussels Convention is formally incorrect, it’s worth noting that there are no substantive differences between the two instruments. Regulation 44/01, also known as the Brussels I Regulation, is essentially a continuation of the Brussels Convention.
4. Rome Convention and Derogation from Articles 21 and Following of the OLJ
The Rome Convention on the law applicable to contractual obligations and Articles 21 and following of the Organic Law of the Judiciary address different issues. The Rome Convention aims to unify conflict rules for determining the applicable law in contracts, while the OLJ establishes criteria for international jurisdiction of Spanish courts.
International treaties hold a higher hierarchical position than internal laws in the Spanish legal system. Therefore, when an international agreement regulates a specific matter, the corresponding internal rules become inapplicable but are not explicitly repealed. In this case, the Rome Convention does not derogate from the OLJ; they simply address distinct legal aspects.
Recognition and Enforcement of Judgments
A. Auto of Audiencia Provincial de Guadalajara, January 22, 2009 (Law 67061/2009)
5. Generic Implications of Recognition
The request for recognition and enforcement of a Colombian divorce judgment was initially dismissed because the marriage was not registered in the Spanish civil registry. This prevented compliance with Article 76 of the Civil Registration Act, which requires marginal registration of divorces.
While registration was denied, recognizing the Colombian judgment could still have the following effects in Spain:
- Res judicata: Spanish courts would be precluded from hearing a new divorce action between the same parties.
- Constitutive/declarative effect: The divorce would be recognized, allowing the parties to remarry in Spain.
- Executive effect: Provisions of the judgment, such as maintenance payments, could be enforced.
These are the “generic implications” referred to by the Audiencia Provincial de Guadalajara.
6. Additional Requirements for Recognition and Enforcement
The Convention between Spain and Colombia of May 30, 1908, on the enforcement of civil judgments is a simple text compared to later conventions. It establishes two main requirements for recognition and enforcement.
According to Article 951 of the Civil Procedure Law of 1881 (LEC 1881), the conventional regime takes precedence over the system of reciprocity and supplementary conditions. Therefore, no additional conditions beyond those specified in the bilateral agreement can be required.
However, interpreting the agreement in light of the Spanish Constitution, particularly Article 24 on the right to effective judicial protection, leads to the conclusion that the conditions outlined in Article 954 of the LEC 1881 are applicable. These conditions ensure that recognition and enforcement do not violate fundamental rights or public policy.
The conditions include:
- Personal action: The judgment must not violate the exclusive competence of Spanish courts.
- Default: The judgment must not have been rendered in violation of the right to defense.
- Lawfulness: The judgment must not be contrary to Spanish public policy.
- Formal requirements: The judgment must meet necessary authenticity requirements.
Additionally, jurisprudence has established two further requirements:
- No inconsistency with a prior decision: The judgment must not contradict a previous decision rendered or recognized in Spain.
- Respect for exclusive competence: The judgment must not violate the exclusive competence of Spanish courts.
In essence, the second requirement of the bilateral agreement, which states that judgments must not be contrary to the laws of the state where enforcement is sought, encompasses the conditions of Article 954 of the LEC 1881.