Private International Law: Core Principles and Legal Frameworks
Sources of International Law
- Internal Sources
- Treaty Sources: Agreements among states.
- Institutional Sources: Events created by international organizations.
- Transnational Law: Such as Lex Mercatoria.
- Soft Law: Non-binding recommendations and opinions, lacking direct legal force.
Sources and Techniques in Private International Law (DIP)
- Primary Law (Original Law): Founding treaties, agreements, and amending or accession acts.
- Secondary Law (Derived Law): Measures adopted to comply with treaties and objectives, including:
- Regulations
- Directives: Aim for harmonized solutions, e.g., for insurance companies.
- Conventions: As per Article 293 TFEU, covering international jurisdiction, recognition of civil and commercial decisions, and applicable contract law.
Jurisdiction (Forums)
Key aspects include: Jurisdiction (Articles 21-25 LOPJ), Applicable Law (Civil Code: Arts. 8-12, 107; Commercial Code: Art. 15; Bankruptcy Law 22/2003), and Enforceability.
Types of Jurisdiction
- Personal Jurisdiction (Forum Personae)
- Territorial Jurisdiction (Regional Forum)
- Specific or Flexible Jurisdiction
- Exorbitant Jurisdiction: Where the plaintiff’s nationality alone is deemed sufficient for jurisdiction, and the resulting judgment may not be recognized abroad.
General Jurisdiction
The defendant’s domicile.
Special Jurisdiction
- Contractual Matters: Where the contract is signed or perfected in Spain.
- Maintenance Matters (Principle of Reasonable Proximity): Domicile of the maintenance creditor.
- Tort/Delict: Where the damage occurred.
- Branch Operations: Where the branch is located.
- Assistance or Salvage: Where the cargo or freight is located.
Exclusive Jurisdiction
- Rights and leases of immovable property.
- Validity, nullity, or dissolution of companies.
- Patents and trademarks.
- Recognition and enforcement of judgments: Courts of the state where enforcement is sought.
Related Claims
Claims that are linked together, to be judged concurrently to avoid irreconcilable resolutions.
Derogation of Jurisdiction (Fori Derogatio)
Consists of the parties’ exclusion of Spanish court jurisdiction, attributing it to a foreign court.
Point of Connection
Provides legal relevance to an element or legal circumstance found within a factual scenario, thereby localizing a legal relationship in a specific state whose law will be applied. Points of connection can be: factual, legal, mutable, immutable, subjective, objective, personal, spatial, rigid, and flexible.
Regulatory Techniques in Case of Conflict
Standards applied when there is a conflict of laws between domestic law and lex fori. This involves applying: a) special law over general law, and b) the law most closely related, as determined by the judge (considering subjective and material facts to resolve the issue and involved parties).
Allegation and Proof of Foreign Law by Parties
In ex officio proceedings, lex fori cannot be presumed. Therefore, the content and validity of foreign law must be alleged and proven (Art. 282 LEC). Once asserted, the judge must rely on the necessary evidence.
Exequatur
Mechanism that renders a foreign decision enforceable. It applies to judicial decisions, public documents, arbitral awards, and public acts.
Recognition
Mechanism that grants a foreign decision the effect of res judicata in Spain. For recognition in Spain, the following conditions must be met:
- The judgment must have been issued following a personal action.
- It must not have been rendered in absentia.
- The underlying obligation must be lawful in Spain.
- The enforcement document must meet the authenticity requirements of the issuing nation.
Decisions considered for recognition must be final and not subject to appeal.
Renvoi (Forwarding)
Arises from a ‘negative conflict of laws,’ where the conflict-of-laws rule of the lex fori and the conflict-of-laws rule of the foreign law declared applicable both decline jurisdiction, considering neither competent. It results from the rigidity of conflict-of-laws rules.