Understanding Interregional and International Private Law in Spain
Interregional Law
Interregional law governs interconnected private legal situations with different legal systems within one legal state. Whether or not interregional law is a function of the legal state model in question is debatable. In Spain, the competence for the development of interregional law is vested exclusively in the central state. However, regional governments have developed rules of interregional law, some of which have been appealed to the Constitutional Court. Nevertheless, some interregional regulations are valid, such as provisions contained in the Statute of Autonomy or foral compilations, and are considered state law.
On the other hand, there are no specific interregional rules of law. Instead, rules used to resolve internal conflicts of law are applied with certain specialties from Private International Law (PIL): replacement of the nationality criterion with regional citizenship and denial of the problems of classification, forwarding, and international public order.
Internal Sources of Spanish Private International Law: The Constitution as Supreme Law
As the private international law enforcement branch of the internal legal system, the internal sources of Spanish PIL are the sources of the Spanish legal order listed in Article 1 of the Civil Code.
To the extent that certain constitutional characters and principles of the Spanish legal order, such as the principles of legality, hierarchy of regulation, and legal security (Article 9 of the Spanish Constitution), are established, the regulatory text affects the overall system of Spanish PIL. PIL standards must uphold and be interpreted in accordance with constitutional values.
The State has exclusive competence to elaborate PIL standards, both in applicable law and in international jurisdiction and the extraterritorial effect of decisions. As our legal system has a strong positive statement of legal character, most PIL standards are contained in ordinary and organic laws, a primary source of private international law.
As for the subsidiary sources, case law has had and continues to have a powerful impact on the formation of PIL rules.
The general principles of law are currently relevant, being the method particularly suitable for interpreting and applying PIL standards.
Custom has a minor effect since most of the rules of Private International Law are contained in written rules.
Advantages and Disadvantages of Conventions
Conventions unify PIL standards, both conflict rules and substantive rules, easing the relativity of PIL solutions. They display high technical quality, contributing to the modernization of state PIL. Disadvantages include the requirement for agreement between states for the elaboration of a convention, which is often limited or difficult to reach, the resulting implementation problems, and the need for further development.
Community Private International Law
Provisions in Community law govern private international situations. Those standards may be contained in the original Law, Regulations, Directives, or Community Conventions.
Following the entry into force of the new Article 65 of the Treaty Establishing the European Community (TEC), PIL is going to be developed by the Community institutions rather than the national legislature, but with respect to the principles of proportionality and subsidiarity. The EU institutions have competence to develop PIL standards, ad intra and ad extra, in its three sectors and in relation to both economic and personal issues and family matters. Another deficiency of the technique used in Article 65 TEC is that it is a semi-intergovernmental development process, which limits the role of the European Commission, leading to a PIL developed under national parliamentary control.
In any case, this communitarization of PIL has resulted in a significant increase in the quantity and quality of Community PIL standards. The regulation has the advantages that it implies not merely a unification and harmonization of national laws, but also avoids problems of the law of treaties, empowers international legal certainty, and allows for its interpretation by the European Court of Justice (ECJ).
Control of Jurisdiction
A court of a Member State with which the main purposes of a case are brought, over which the courts of another Member State have exclusive jurisdiction under Article 22, is automatically declared incompetent.
If a person domiciled in a Member State is sued in a court of another Member State and does not appear, the court shall declare ex officio that it has no jurisdiction if its jurisdiction is not based on the provisions thereof.
Lis Pendens
When claims are made between the same parties, for the same purpose, and the same cause in the courts of different Member States of the Rules, the court before which the second application is filed must:
- Automatically suspend proceedings pending the acceptance of jurisdiction by the court before which the first application was brought.
- Withdraw in favor of such a court if it subsequently accepts jurisdiction.
Derogatio Fori (Submission to Foreign Courts)
Derogatio fori refers to the negative effect of submission that occurs when the parties repeal the International Court of Justice (ICJ) attributed to the courts through an agreement of submission to foreign courts or international private arbitration.
Before the silence of the Organic Law of the Judiciary (LOPJ) regarding the purpose of submission to foreign courts, it was initially denied that an agreement of submission to foreign courts or international private arbitration could have the effect of derogatio fori of the ICJ assigned to courts by Article 22 of the LOPJ, given the mandatory nature of the ICJ standards. However, the position of the most recent case law seems more correct in supporting derogatio fori, arguing that the ICJ does not affect sovereignty and that non-admission would violate the legal security of individuals by not complying with the submission agreement.
Regarding the effective scope of derogatio fori, it only arises in respect of disputes outside the scope of Regulation 44/2001 or included within it but for which there was an agreement for submission to a court of a non-member state of Regulation 44/2001, as the purposes of this agreement are not governed by Regulation 44/2001.
Derogatio fori has limits because of the area and is to be applied to materials in which the parties can freely dispose of their rights and may not concern matters that are subject to the exclusive competence of Spanish courts.