International Jurisdiction in Spain: A Comprehensive Guide
ITEM 3: Competent International Court: The Spanish Model for International Jurisdiction of Conventional and State Origin
Hierarchy
- EU (R.44/2001).
- Mainstream.
- State level.
International Jurisdiction of Conventional Origin
In the conventional field, we have two instruments on international jurisdiction and recognition and enforcement of ST:
- Brussels Convention of September 27, 1968.
- Lugano Convention of 1988.
A. Brussels Convention
It is the immediate predecessor of R.44/2001, which transformed the convention into regulation. As a result of the Treaty of Amsterdam, the European Parliament regulates this matter. Some statements were against this communitarization process: Denmark, England, and Ireland. Why is there the Brussels Convention if R.44/2001 already exists? To extend the effects of the Regulation to Denmark (Article 1 of Regulation 44/2001: “In this Regulation, the term ‘Member State’ means any Member State except Denmark”). However, Denmark has already signed an agreement with the EU. Once this agreement enters into force, the Brussels Convention will no longer be justified.
B. Lugano Convention
The Lugano Convention also refers to jurisdiction and recognition and enforcement of ST, similar to R.44/2001. Its creation aims to apply to European countries that are not part of the EU. Therefore, it is an agreement between the EU and EFTA: Switzerland, Norway, Iceland, and Liechtenstein. These countries wanted to apply the rules in this area but not enter the European Union, so this Agreement was signed between them and EU Member States.
The general criterion for applying the Lugano Convention is clearance unless it is an exclusive jurisdiction or a case of tacit or express submission, in which case R.44/2001 applies.
In any case, these agreements have their days numbered because a new Lugano Convention was signed between the EU, EFTA, and Denmark in July 2007. This new convention aims to extend the purposes of R.44/2001 when it enters into force (signed but not yet implemented). The other two conventions will then disappear.
Spanish Model of International Jurisdiction: State Origin
Acts of a subsidiary are conferring rules and unilateral character. State rules on international jurisdiction are in the LOPJ: Articles 21 to 25.
Our system is applied in the absence of the two preceding EU and conventional scope (in that order). The rules contained in the LOPJ are attributive; they will say whether or not the courts are competent. They only apply where there are no regulations or conventional agreements on the subject.
Our system distributes competition in different orders:
- Article 22 LOPJ: Civil order (the only one we focus on).
- Article 23: Criminal Order.
- Article 24: Order for judicial.
- Article 25: Social order.
The Spanish legislature copied the Brussels Convention (now R. 44/2001) when drafting the LOPJ. Therefore, it is identical to R. 44/2001, and the types of jurisdiction in the LOPJ will be the same as in the Regulation. There is exclusive jurisdiction, implied submission, express submission, domicile of the defendant, and special jurisdiction by reason of the matter.
Exclusive Jurisdiction
Article 22.1 of the LOPJ states: “1. In the exclusive rights in real property leases which are in Spain, in terms of creation, validity, nullity, or dissolution of companies or legal persons domiciled in Spanish territory and in respect of the agreements and decisions of its organs as regards the validity or invalidity of the entries made in a Spanish record in the matter of registration or validity of patents and other rights subject to deposit or registration when sought or made in Spain the deposit or registration, on the recognition and enforcement in the Spanish territory of judgments and arbitral awards rendered abroad.” There are five exclusive jurisdictions listed in R. 44/2001. The difference is the wording because here are the rules conferring jurisdiction, and in the Regulation, they are distributive rules of jurisdiction.
General Jurisdiction: Tacit Submission, Express Submission, and Defendant’s Address
Article 22.2 of the LOPJ states: “2. In general, when the parties have expressly or impliedly submitted to the Spanish courts or tribunals, and when the defendant is resident in Spain.”
Special Jurisdiction by Reason of the Matter
Article 22.3 of the LOPJ states: “3. In the absence of the above criteria and in terms of declaration of absence or death, when the missing may have had his last domicile in Spanish territory in the field of disability and measures to protect the person or property of minors or incapacitated, when these having their habitual residence in Spain in terms of personal and property relations between spouses, marriage annulment, separation and divorce when both spouses hold residence in Spain at the time of application or the applicant is Spanish and habitually resident in Spain, and when both spouses have Spanish nationality, whatever their place of residence provided that promote their request for a mutual agreement or with the consent of another, from relationships and parent-child relationships when the child is habitually resident in Spain at the time of application or the applicant is Spanish or habitually resident in Spain for the establishment of adoption when the adoptive or Spanish is adopted or habitually resident in Spain, in food, where the creditor of the same habitual residence on Spanish territory, in respect of contractual obligations, where they were born or to be performed in Spain in terms of contractual obligations, when the fact of that result has occurred in Spanish territory or the perpetrator and the victim have their habitual residence in Spain, in actions relating to movable property, if they are in Spanish territory at the time of application, in inheritance, where the person has had his last domicile in Spanish territory or possession of property in Spain.”
The Spanish legislature copied the Brussels Convention but made some mistakes:
- It copied by default, forgetting to copy the rules for implementing the system, which regulate lis pendens, connection, and control of international jurisdiction.
- It copied too much. The Regulation only deals with obligations and contracts, but the LOPJ extends to other subjects.
- It copied a hierarchical order of application of jurisdiction from the distributive point of view. This was unnecessary because our legislation must determine whether competent or not regardless of any hierarchical order, as the competition is applied attributive and exclusive.
Special Jurisdiction by Reason of the Matter in the LOPJ
These are regulated in Article 22.3 of the LOPJ and classified in the following areas:
- People matter.
- Family matters.
- Matters of succession.
- Real rights in movable property.
- Contractual obligations.
- Contractual obligations.
- Special procurement (to favor the weaker party in the relationship) (This matter is governed by Article 22.4 of the LOPJ).
People Matter
- In terms of declaration of absence or death, if the disappeared had been his last home in Spanish territory.
- In terms of disability and measures to protect the person or property of minors or incapacitated, when they had their habitual residence in Spain.
Family Matters
- In terms of personal and property relations between spouses, marriage annulment, separation, and divorce when both spouses hold residence in Spain at the time of application or the applicant is Spanish and habitually resident in Spain, and when both spouses have Spanish nationality, whatever their place of residence, provided that they promote her request or a mutual agreement with the other’s consent.
- From relationships and parent-child relationships when the child is habitually resident in Spain at the time of application or the applicant is Spanish or habitually resident in Spain.
- For the constitution of adoption when the adoptive parent or adopted either Spanish or habitually resident in Spain.
- In food, where the creditor of the same habitual residence on Spanish territory.
Matters of Succession
When the deceased had been his last home in Spanish territory or possession of property in Spain.
Real Rights in Movable Property
In actions relating to movable property, if they are on Spanish territory.
Contractual Obligations
When the fact of that result has occurred in Spanish territory or the perpetrator and the victim have habitual residence in Spain.
Contractual Obligations
When they were born or contractual obligations to be met in Spain.
Special Procurement
All cases referred to in Article 22.4 of the Organic Law of Judicial Power. “Also in terms of consumer contracts where the buyer is domiciled in Spain if it is an installment sale of tangible goods or pay for to finance their acquisition and in the case of any other contract for the provision of service or on property when the contract offer has been preceded by personal or advertising in Spain or the consumer had taken place in Spanish territory acts necessary for the conclusion of the contract of insurance, the insured and insurer domiciled in Spain, and in litigation relating to the operation of a branch, agency or business establishment, when this is in Spanish territory. In insolvency matters are generally subject to the provisions of regulatory law.”