The new Spanish Law 29/2015, on international legal cooperation in civil matters
The Law 29/2015, on international legal cooperation in civil matters (henceforth referred to as the “Law”) entered into force on August 20, 2015.
The purpose of this Law is to set a framework for the legal cooperation between Spanish and foreign authorities in civil and commercial matters regardless of the nature of the judicial body. The matters covered by this new Law include civil liability arising out of criminal offences and employment contracts.
This new Law will constitute a general framework and shall come into place on a subsidiary basis to EU Law and International Treaties. In addition, pursuant to Article 2(a) of the Law, this Law will also operate on a subsidiary basis to specific sectorial legislation, such as the Insolvency Law, the International Law on Adoption, the Civil Registry Law, the Users and Consumers Act, the Arbitration Act, the Law on Mortgages, the Commercial Code and Commercial Registry Regulations and the rules of international private law in the Voluntary Jurisdiction Law, which will prevail, without prejudice to the subsidiary application of this Law on international legal cooperation.
There is a novelty in this Law insofar as the principle of reciprocity is concerned. The need of previous reciprocity for cooperation to exist disappears. However, cooperation may be denied if the lack of reciprocity is persistent or if there is a legal prohibition to cooperate.
This Law allows every court to communicate directly with courts from other States provided that such communications comply with the Law of both states.
One of the key elements of this new Law is the provisions regarding the recognition and enforcement of foreign judgments and authentic instruments and the exequatur procedure. It repeals Articles 951 to 958 of the 1881 Civil Procedure Rules to design a new process. The case law of the Supreme Court on this matter was inconsistent with the provisions of Articles 951 to 958 of the 1881 Civil Procedure Rules. The new Law takes into account the current trend of legal writers and recent legislation.
An additional modification to the former system of recognition of foreign judgments is that now the courts shall also seek to enforce those provisions of foreign judgments that are not envisaged in the Spanish legal system. The courts must find a measure that has similar effects to that sought in the judgment being enforced in Spain. Before this Law came into force, when there was a provision in a foreign judgment that was not envisaged in the Spanish legal system, such provision or measure was simply not enforced in Spain. This modification seeks to give a more truthful effect to the original judgment.
Article 46 of the Law sets out the seven reasons why a foreign judgment would not be recognized in Spain, such as, inter alia, when the foreign judgement is deemed to be against the rules of public order.
The only substantial modification in relation to the reasons for not recognizing a foreign judgement is that the Law now states what was already a requirement laid out by the courts, i.e. that a foreign judgment would not be enforceable if the defendant did not have the right to defend itself. It is expressly mentioned that in cases where a judgment is issued in contempt of court, the defendant must have been duly notified prior to the judgment and the judgment must clearly state that it is the defendant’s fault that the judgment was delivered without the defendant exercising its right to defend itself.
There is yet another substantial modification implemented by the new Law, i.e. when the parties are not able to prove the content of foreign Law, Spanish Law may be applied in order to ensure that justice is done.
In conclusion, this new Law facilitates the recognition and enforcement of foreign judgments. It is also intended that those foreign judgments are enforced with the same effects as they would have been in their original jurisdiction, provided they comply with certain standards.