Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Spain

Civil Code of 24 July 18891

published in Gaceta de Madrid no 206, 25 July 1889 as amended

Preliminary Title

On legal rules, their application and effectiveness

[…]

Chapter IV Rules of private international law

Article 8

  • Criminal, police and public security statutes shall be binding on all persons within Spanish territory.

  • (repealed).

Article 9

  • The personal law applicable to an individual shall be determined by his nationality. Such law shall govern capacity and civil status, family rights and duties and mortis causa succession.

    A change in personal law shall not affect the coming of age acquired in accordance with the former personal law.

  • The effects of marriage shall be governed by the personal law common to the spouses at the time of the marriage; in the absence thereof, by the personal law or the law of the place of residence of any of them, chosen by both in an authentic instrument executed prior to the marriage ceremony; in the absence of such election, by the law of the place of habitual residence common to both immediately after the ceremony and, in the absence of such residence, by that of the place of the marriage ceremony.

    Legal separation and divorce shall be governed by the law provided in article 107.

  • Covenants or marriage articles stipulating, amending or replacing the property regime of the marriage shall be valid when they are in accordance with either the law governing the effects of the marriage, or the law of the nationality or habitual residence of either party at the time of execution thereof.

  • The determination and nature of a parent-child relationship shall be governed by the law of the child’s habitual residence at the time of the establishment of the parent-child relationship. Absent p. 3855the child’s habitual residence, or if that law does not allow the establishment of the parent-child relationship, then the child’s national law at that time shall be applied. If that law does not allow the establishment of the parent-child relationship or if the child lacks habitual residence and nationality, then Spanish substantive law shall be applied. Paragraph 5 shall be adhered to with regard to the establishment of a parent-child relationship by adoption.

    The law applicable to the content of the parent-child relationship and to the exercise of parental responsibility shall be determined in accordance with the Hague Convention, 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children.

  • International adoption shall be governed by the provisions of the International Adoption Law. Likewise, adoptions decreed by foreign authorities shall be effective in Spain in accordance with the provisions of the aforementioned International Adoption Law.

  • The law applicable to the protection of minors shall be determined in accordance with the Hague Convention, 19 October 1996, referred to in paragraph 4.

    The law applicable to the protection of adults shall be determined in accordance with the law of their habitual residence. If the residence changes to another state, the law of that other state shall apply, notwithstanding the recognition in Spain of the protective measures adopted in other states. However, Spanish law shall apply to the adoption of provisional or urgent protective measures.

  • The law applicable to maintenance obligations arising from a family relationship shall be determined in accordance with the Hague Protocol, 23 November 2007, on the Law Applicable to Maintenance Obligations, or the legal text that replaces it.

  • Succession mortis causa shall be governed by the national law of the decedent at the time of his death, whatever the nature of the property and the country in which it is located. However, testamentary provisions and covenants relating to future succession executed in accordance with the national law of the testator or bequeather at the time of execution thereof shall remain valid even if another law is to govern the succession. Rights attributed by operation of law to the surviving spouse shall be governed by the same law which governs the effects of marriage, respecting at all times the forced share allocated to the descendants.

  • For the purposes of the present chapter, the provisions of the international treaties shall apply to situations of dual nationality provided under Spanish law, and, in the absence of such provisions, the nationality of the last place of habitual residence and, in the absence thereof, the last nationality acquired shall be preferred.

    In any event, Spanish nationality shall prevail for persons who also hold another nationality that is not provided for in Spanish statutes or international treaties. If such person should hold two or more nationalities, and none should be Spanish, the provisions of the following section shall apply.

  • The law of the place of habitual residence shall be deemed to be the personal law of persons without nationality or with indeterminate nationality.

  • The personal law corresponding to legal entities shall be determined by their nationality, and shall apply in all matters relating to their capacity, incorporation, representation, operation, transformation, dissolution and termination.

In mergers between companies of different nationalities their respective personal laws shall be taken into account.

Article 10

  • Possession, ownership and other rights over immovable property and publicity thereof shall be governed by the law of the place where such property located.

p. 3856The same law shall apply to movable property.

For the purposes of creating or assigning rights over goods in transit, the latter shall be deemed to be located at their place of dispatch, unless the sender and the recipient should have expressly or implicitly agreed to deem them to be located at their place of destination.

  • Vessels, aircraft and railway transport vehicles, and all rights created thereon, shall be subject to the law of their flag, matriculation or registration. Automobiles and other road transport vehicles shall be subject to the law of the place where they are located.

  • The issuance of securities shall be subject to the law of the place where it takes place.

  • Intellectual and industrial property rights shall be protected within Spanish territory in accordance with Spanish law, without prejudice to the provisions of international treaties and conventions to which Spain is a party.

  • The law to which the parties have expressly submitted shall apply to contractual obligations, provided that it has some connection with the transaction in question; in the absence thereof, the national law common to the parties shall apply; in the absence thereof, that of their common habitual residence and, lastly, the law of the place where the contract has been entered into.

Notwithstanding the provisions of the preceding paragraph, in the absence of express submission, contracts relating to immovable property shall be governed by the law of the place of their location, and sale and purchases of material movable property in commercial establishments by the law of the location of such establishments.

  • In the absence of express submission by the parties and without prejudice to the provisions of section 1 article 8, obligations resulting from a labour contract shall be governed by the law of the place where the services are provided.

  • Gifts shall in any event be governed by the national law of the donor.

  • Contracts for valuable consideration entered into in Spain by a foreigner without sufficient capacity according to his national law shall be valid for the purposes of Spanish law if the cause of his lack of capacity should not be recognised under Spanish law. This rule shall not apply to contracts relating to immovable property located abroad.

  • Non-contractual obligations shall be governed by the law of the place where the event from which they result took place.

The management of another’s business shall be governed by the law of the place of the manager’s main activity.

Unjust enrichment shall be governed by the law pursuant to which the transfer of assets in favour of the enriched person took place.

  • The law applicable to an obligation shall also govern the requirements for its performance and the consequences of its breach, and the extinction thereof. Notwithstanding the foregoing, the law of the place of performance shall apply to modes of enforcement which require judicial or administrative intervention.

  • Legal representation shall be governed by the law regulating the legal relationship from which result the representative’s powers, voluntary representation, in the absence of express submission, by the law of the country where the powers conferred are to be exercised.

Article 11

  • Forms and solemnities of contracts, wills and other legal acts shall be governed by the law of the country in which they are executed. Notwithstanding the foregoing, those entered into according to the forms and solemnities required by the law applicable to their content, and those entered into in accordance with the personal law of the grantor or the law common to the parties shall also be valid. Likewise, acts and contracts relating to immovable property executed in accordance with the forms and solemnities of the place where the property is located shall also be valid.

p. 3857If such acts should be executed on board vessels or aircraft during navigation or f1ight, they shall be deemed entered into in the country of their flag, matriculation or registration. Military vessels and aircraft shall be deemed a part of the territory of the State to which they belong.

  • If the law regulating the content of acts and contracts should require a particular form or solemnity for the validity thereof, this shall always apply, even if they are executed abroad.

  • Spanish law shall apply to contracts, wills and other legal acts authorised by Spanish diplomatic or consular officers abroad.

Article 12

  • Classification to determine the applicable conflict of laws rule shall always be made in accordance with Spanish law.

  • Referral to foreign law shall be deemed made to its material law, without taking into account any renvoi made by its conflict of laws rules to another law other than Spanish law.

  • In no event shall foreign law apply where it is contrary to public policy.

  • The use of a conflict of laws rule to elude a mandatory Spanish law shall be deemed to constitute fraud of the law.

  • Where a conflict of laws rule should refer to the legislation of a State in which different legislative systems should coexist, the determination of which one is applicable shall be made in accordance with the legislation of such State.

  • The Courts and authorities shall apply Spanish conflict of laws rules ex officio.

  • […]

Book One

[…]

Title Four On marriage

[…]

Chapter XI

Article 107

  • The nullity of marriage and its effects shall be determined in accordance with the law applicable to its performance.

  • Separation and divorce are governed by the private international law rules of the European Union or Spain.

Organic Law 6/1985 of 1 July on the Judiciary2

Revised by Organic Law 7/2015 of 28 July

[…]p. 3858

Book I

Title I The extension and limits of jurisdiction

Article 21

  • Spanish civil courts shall hear pleas arising in Spanish territory according to the terms of the international treaties and conventions to which Spain is party, the rules of the European Union and Spanish statutes.

  • Notwithstanding the foregoing, they shall not hear pleas formulated concerning individuals or assets enjoying immunity from jurisdiction or enforcement in accordance with the rules of public international law.

Article 22

Spanish civil courts shall have exclusive and overriding jurisdiction to hear pleas concerning the following matters:

  • rights in rem and tenancies of immovable property situated in Spain. However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the Spanish courts shall also have jurisdiction when the defendant is domiciled in Spain, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same State;

  • the constitution, the validity, the nullity or the dissolution of companies or legal persons having their domicile in Spanish territory, as well as with respect to agreements and decisions of their organs:

  • the validity or invalidity of entries entered in a Spanish register;

  • the registration or validity of patents, trade marks, designs, or other rights required to be deposited or registered, when their filing or registration has been applied for or has taken place in Spain;

  • the recognition and enforcement in Spanish territory of orders and other judgments, arbitration decisions and mediation agreements rendered abroad.

Article 22 bis.

  • In those matters in which a rule expressly so permits, Spanish courts shall have jurisdiction when the parties, regardless of their domicile, have expressly or impliedly submitted to them. Agreements or similar provisions of a contract conferring jurisdiction on the Spanish courts shall have no legal force if they are contrary to Article 22 quater, 22 quinquies, 22 sexies and 22 septies, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction according to Article 22, in which case those provisions shall be observed.

Submission to Spanish courts in matters contemplated in Article 22 quinques (d) and (e) shall only be valid if it derives from a submission agreement entered into after the dispute has arisen, or if both parties had their domicile or habitual residence in Spain at the time of conclusion of the contract, or if the claimant is a consumer, insured or policyholder.

  • An express submission agreement is one in which the parties grant to the Spanish courts the competence over some or all disputes which have arisen or which may arise between themselves as regards a particular legal contractual or non-contractual relationship. Jurisdiction established by express submission shall be extended to the validity of the submission agreement.

p. 3859An express submission agreement must be in writing as a term of a contract or as an independent agreement, or evidenced in writing, or in a form which accords with practices which the parties have established between themselves, or in international trade or commerce in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. It shall be construed that there is an agreement in writing when it derive from a communication by electronic means which provides a durable record.

An agreement in writing shall also be deemed when it is set forth in an exchange of statements of claim and defence in proceedings initiated in Spain, in which the existence of the agreement is asserted by one party and not denied by the other.

  • Irrespective of the cases in which their jurisdiction derives from other provisions, Spanish courts shall have jurisdiction when the defendant appears before them. This provision shall not be applicable if the purpose of the appearance is to challenge the jurisdiction.

Article 22 ter.

  • In matters other than those contemplated in Articles 22, 22 sexies and 22 septies, and if there is no submission to the Spanish courts in accordance with Article 22 bis, then Spanish courts shall have jurisdiction when the defendant is domiciled in Spain or when it is so established by any of the grounds for jurisdiction laid down in Articles 22 quarter and 22 quinquies.

  • For the purposes of the present Article a person is deemed to be domiciled in Spain when he/she is habitually resident in Spain.

A legal person is deemed to be domiciled in Spain when its corporate seat, its centre of administration or central administration or its principal place of business is located in Spain.

  • In case of multiple defendants the Spanish courts shall have jurisdiction when at least one of them is domiciled in Spain, provided that only one claim is pursued or multiple claims linked on the basis of a title or cause of action that make their consolidation advisable.

  • However, the jurisdiction established pursuant to paragraph 1 of this Article may be excluded by a choice of court agreement in favour of a foreign court. In such a case, the courts shall stay the proceedings and may only hear the stayed claim when the designated foreign court has declined jurisdiction.

  • The exclusion of jurisdiction of the Spanish courts shall have no effect in those matters in which submission to them is not permitted.

Article 22 quater.

Absent the foregoing criteria, the Spanish courts shall have jurisdiction:

  • in matters of declaration of absence or death, when the missing person was last domiciled in Spanish territory or has Spanish nationality;

  • in matters relating to the capacity of persons of legal age and protective measures of them or their assets, when they are habitually resident in Spain;

  • in matters of personal and patrimonial relations between spouses, nullity of marriage, separation and divorce and their modifications, provided that no other foreign court has jurisdiction, when both spouses are habitually resident in Spain at the time of lodging of the claim or when they were last habitually resident in Spain and one of them still resides there, or when the defendant is habitually resident in Spain, or in case the petition is filed by mutual consent, when one of the spouses is habitually resident in Spain, or when the applicant has been resident in Spain for at least a year since the lodging of the claim, or when the claimant is Spanish and p. 3860has been habitually resident in Spain at least six months before lodging of the claim, and when both spouses have Spanish nationality.

  • in matters of parent-child relationship and paternal relations, protection of minors and parental responsibility, when the child or minor is habitually resident in Spain at the time of lodging the claim or the claimant is Spanish, or is habitually resident in Spain or, in any case, at least six months before the claim is lodged;

  • in matters of adoption in the cases regulated in Act 54/2007, dated 28 December, on inter-country adoption;

  • in matters of maintenance, when the maintenance creditor or the defendant is habitually resident in Spain, or if the maintenance plea is ancillary to proceedings concerning the status of a person or parental responsibility when the Spanish courts have jurisdiction to entertain the latter proceedings;

  • in matters of succession when the deceased was last habitually resident in Spain or when the assets are located in Spain and the deceased was a Spanish national at the time of death. Spanish courts shall also have jurisdiction when the parties have submitted to them, provided that the law applicable to the succession is Spanish law. When no foreign court has jurisdiction, Spanish courts shall have jurisdiction with regard to the estate assets that are located in Spain.

Article 22 quinquies.

In addition, absent express or implied submission and even if the defendant is not habitually resident in Spain, Spanish courts shall have jurisdiction:

  • in matters of contractual obligations, when the place of performance of the obligation in question is located in Spain;

  • in matters of non-contractual obligations, when the harmful event occurred in Spain;

  • in pleas relating to the operations of a branch, agency or other establishment when this is situated in Spanish territory;

  • in matters of consumer contracts, consumers may litigate in Spain if they or the other contracting party are habitually resident in Spanish territory; the other contracting party may only litigate in Spain if the consumer is habitually resident in Spain;

  • in matters of insurance when the insured party, policyholder or beneficiary has its domicile in Spain; the insurer may also be sued in the Spanish courts if the harmful event occurred in Spanish territory and it is in respect of a contract of liability insurance or insurance of immovable property, or in respect of liability insurance, if the Spanish courts have jurisdiction to hear the claim brought by the injured against the insured pursuant to letter b) of this Article;

  • in proceedings relating to rights in rem over moveable property, if this property is located in Spanish territory at the time of lodging the claim.

Regarding the matters provided for in letters d) and e) Spanish courts shall also have jurisdiction when the consumer, insured or policyholder is the claimant and the parties have submitted to the Spanish courts after the dispute has arisen, or both parties are domiciled in Spain at the time of conclusion of the contract or the claimant is the consumer, insured or policyholder.

Article 22 sexies.

Spanish courts shall have jurisdiction to adopt provisional or protective measures in respect of persons or assets located in Spanish territory and which are to be complied with in Spain. Spanish courts shall also have jurisdiction to adopt such measures if they have jurisdiction over the main proceedings.

Article 22 septies.

In insolvency matters and proceedings a special act shall be applied.p. 3861

Article 22 octies.

  • Spanish courts shall not have jurisdiction over those cases in which the grounds for jurisdiction provided for in Spanish statutes do not contemplate such jurisdiction.

  • Spanish courts shall base their jurisdiction, either ex officio or at the request of a party, pursuant to the rules in force and the existing circumstances at the time the claim is lodged, and the proceedings shall be conducted until their completion even though such rules or circumstances subsequently have been modified, unless expressly provided otherwise by law.

  • Spanish courts shall decline their jurisdiction if it is not derived from Spanish statutory provisions, in accordance with procedural law. Spanish courts may not abstain or decline their jurisdiction when the dispute is connected to Spain and the courts of the several states connected to the case have declined their jurisdiction. Neither can they abstain or decline their jurisdiction in the case of recognition and enforcement of judgments, arbitration decisions and mediation agreements rendered by foreign courts.

Article 22 nonies.

The exceptions of international lis pendens and related actions shall be alleged and dealt with according to the general provisions of the procedural statutes.

[…]

Law 29/2015 of 30 July on International Legal Cooperation in Civil Matters3

[…]

Title V On the recognition and enforcement of foreign judgments and public documents, exequatur proceedings and the entry in public registries

Chapter I General Provisions

Article 41. Scope of application

  • Foreign definitive judgments adopted in contentious proceedings shall be subject to recognition and enforcement in Spain according to the provisions of this Title.

  • Foreign final judgments adopted within the framework of non-contentious proceedings shall also be subject to recognition and enforcement according to the provisions of this Title.

  • Foreign public documents shall be subject to enforcement pursuant to the provisions of this Act.

  • Protective and provisional measures shall only be subject to recognition and enforcement when their rejection entails a violation of the right to effective judicial protection, and provided that they were adopted after hearing the opposing party.

Article 42. Exequatur proceedings

  • The proceedings for a declaration which is principally concerned with the recognition of a foreign judgment and where relevant to authorize its enforcement shall be termed ‘exequatur proceedings’.

  • p. 3862The same procedure may be used to declare that a foreign judgment is not capable of recognition in Spain when it involves any of the grounds for refusal provided for in Article 46.

Article 43. Definitions

For the purposes of this Title:

  • ‘Judgment’ means any judgment rendered by a court or tribunal of a state, whatever the judgment may be called, including a decision on the determination of costs or expenses by an officer of the court;

  • ‘definitive judgment’ means that against which no remedy of appeal is possible in the State of origin;

  • ‘court or tribunal’ means any judicial authority or authority having attributes equivalent to state judicial authorities in the matters covered by this Act;

  • ‘court settlement’ means any agreement which has been approved by a state court or concluded before a state court in the course of proceedings;

  • ‘public document’ means any document which has been formally drawn up or registered as a public document in a state and whose authenticity relates to the signature and the content of the instrument, and which has been established by a public authority or other authority empowered for that purpose.

Chapter II On Recognition

Article 44. Recognition

  • Foreign judgments which meet the requirements set forth in the provisions of this Title shall be recognized in Spain.

  • When the recognition of a foreign judgment is raised as an incidental issue in judicial proceedings, the court shall decide on the recognition in each proceedings in accordance with procedural law. The effects of incidental recognition shall be limited to the main proceedings and shall not prevent a request for exequatur of the foreign judgment.

  • By virtue of its recognition a foreign judgment may produce in Spain the same effects as in the State of origin.

  • If a judgment contains a measure which is unknown in Spanish law, that measure shall be adapted to a measure known which has equivalent effects attached to it and which pursues similar aims and interests, although such adaptation shall not result in effects going beyond those provided for in the law of the state of origin. Any party may challenge the adaptation of the measure.

Article 45. Foreign judgments subject to modification

  • A foreign judgment may be modified by Spanish courts or tribunals provided that the judgment has been previously recognized as a principal or incidental issue in accordance with the provisions of this Title.

  • The foregoing shall not preclude the possibility of bringing a fresh claim in declaratory proceedings before Spanish courts or tribunals.

Article 46. Grounds for refusal of recognition

  • Foreign definitive judgments shall not be recognized:

    • if they are contrary to public policy;

    • where the judgment has been given with a manifest infringement of the rights of the defence of any party. Where the judgment was given in default of appearance, it is deemed that there is a manifest infringement of the rights of the defence if the defendant was not duly served with p. 3863the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence;

    • where the foreign judgment had decided on a matter within the exclusive jurisdiction of Spanish courts or on any other matter if the jurisdiction of the court of origin is not the result of a reasonable connection. The existence of a reasonable connection with the dispute shall be presumed when the foreign court had relied for its international jurisdiction on grounds similar to those provided for under Spanish law;

    • if the judgment is irreconcilable with a judgment given in Spain;

    • if the judgment is irreconcilable with an earlier judgment given rendered in another state, provided that the earlier judgment fulfils the conditions necessary for its recognition in Spain.

    • if proceedings between the same parties and having the same subject matter are pending in Spain and those proceedings were instituted first.

  • Foreign court settlements shall not be recognized if they are contrary to public policy.

Article 47. Collective claims

  • Foreign judgments adopted in proceedings derived from collective claims shall be subject to recognition and enforcement in Spain. In particular, in order to be invoked against those affected who have not expressly joined it is required that the foreign collective claim was notified or published in Spain by means equivalent to those required by Spanish law and that such affected persons had the same opportunities to participate in or withdraw from the collective proceedings as those domiciled in the state of origin.

  • In such cases, the foreign judgment shall not be recognized if the jurisdiction of the court of origin was not based in a jurisdiction ground which is equivalent to those provided for under Spanish law.

Article 48. Prohibition of substantive review

  • Under no circumstances may the foreign judgment be reviewed as to its substance in the Member State addressed. In particular, recognition shall not be refused on the ground that the foreign court applied a law other than that which would have been applicable under the Spanish rules of private international law.

Article 49. Partial recognition

Where a foreign judgment has been rendered in respect of several matters and recognition cannot be granted for the entire judgment, enforcement may be granted for one or more of the rulings.

Chapter III On Enforcement

Article 50. Enforcement

  • A foreign judgment enforceable in the State of origin shall be enforceable in Spain once an exequatur has been obtained in accordance with this Title.

  • The procedure for the enforcement of foreign judgments in Spain shall be governed by the provisions of the Civil Procedure Act, including the expiry of the enforcement action.

  • A party may request partial enforcement of a judgment.

Article 51. Enforcement of foreign court settlements

Foreign court settlements that have been recognized shall be enforced in accordance with the preceding article.p. 3864

Chapter IV Judicial exequatur proceedings

Article 52. Jurisdiction.

  • Jurisdiction to hear an application for exequatur falls to the Courts of First Instance of the domicile of the party against whom recognition or enforcement is sought, or of the person to whom the effects of the foreign judgment refer. Subsidiarily, local jurisdiction shall be determined by reference to the place of enforcement or by the place where the judgment is intended to produce its effects, and in the last instance the Court of First Instance before which the claim is lodged shall be competent.

  • The jurisdiction of the Mercantile Courts to hear an application for exequatur of foreign judgments concerning matters within their competence shall be determined in accordance with the criteria set out in paragraph 1.

  • If the party against whom the exequatur is sought is subject to insolvency proceedings in Spain and the foreign judgment concerns matters of the competence of the Insolvency Court, then jurisdiction to hear the application for exequatur shall fall to the Insolvency Court and shall be conducted as an insolvency procedural plea.

  • Spanish courts and tribunals shall control ex officio the objective jurisdiction to hear these proceedings.

Article 53. Free legal assistance

The parties in exequatur proceedings may request the benefits that may correspond to them pursuant to Law 1/1996 on Free Legal Assistance dated 10 January.

Article 54. Proceedings

  • Exequatur proceedings, in which the parties are to be represented by their court representative and with the assistance of their attorney, are initiated by a claim at the request of any person who proves a legitimate interest. The claim of exequatur and the application for enforcement may by joined in the same written statement. Nonetheless, enforcement is not possible until a decision of exequatur has been issued.

  • The adoption of protective measures, pursuant to the provisions of the Civil Procedure Act, may be sought to ensure effectiveness of the judicial protection intended to be obtained through the proceedings.

  • The claim shall be brought against the party or parties against whom the foreign judgment is intended to be asserted.

  • The claim must be in accordance with the requirements provided for in Article 399 of the Civil Procedure Act and must be accompanied by:

    • the original or an authenticated copy of the foreign judgment, including the legalization or apostille:

    • if the judgment was rendered in default of appearance, the document that proves service of the document instituting the proceedings or an equivalent document;

    • any other document proving that the foreign judgment is final and, as the case may be, enforceable in the state of origin. This particular may be stated in the same judgment or may be inferred from the law applied by the court of origin;

    • the relevant translations in accordance with Article 144 of the Civil Procedure Act.

  • The claim and the documents submitted are to be examined by the Court Clerk, who shall issue an order admitting the claim and shall transfer it to the defendant, who may object within a period of thirty days. The documents among others for challenging authenticity of the foreign judgment, the correct service of the document which instituted the proceedings to the defendant and that the foreign judgment is final and enforceable may be attached by the defendant to the statement of objection to the exequatur.

  • p. 3865However, if the Court Clerk determines a lack of rectification of a procedural fault or of a possible cause for refusing the exequatur leave to proceed, according to Spanish procedural law, then the Court Clerk shall notify the Court so that it may decide on the admission within ten days in those cases where it considers that there is a lack of jurisdiction or competence, or when the claim has formal defects, or the documents provided were incomplete, and where these defects have not been rectified by the claimant within the five day time limit granted for this purpose by the Court Clerk.

  • Once the objection is formalised or once the period for its formalization has elapsed without its being formalized, the court shall decide upon an appropriate response within a period of ten days by a court order.

  • The Public Prosecution Service shall always intervene in these procedures, and for this purpose all proceedings are to be transferred to the Public Prosecution Service.

Article 55. Appeals

  • Only a remedy of appeal according to the provisions of the Civil Procedure Act may be lodged against the exequatur court order. If the order granted the exequatur, the court may suspend enforcement or make enforcement conditional upon provision of the appropriate surety.

  • An extraordinary appeal for breach of procedure or a cassation appeal according to the provisions of the Civil Procedure Act may be lodged against the decision passed at second instance by the Provincial Court.

Chapter V On foreign public documents

Article 56. Enforcement of foreign public documents

  • Public documents issued or authorized by foreign authorities shall be enforceable in Spain if they are enforceable in the country of origin and are not contrary to public policy.

  • For the purposes of their enforceability in Spain, public documents shall have at least the same or equivalent effects as those issued or authorized by Spanish authorities.

Article 57. Adaptation of foreign legal institutions

If necessary for the proper enforcement of public documents issued or authorised by foreign authorities, Spanish public notaries and civil servants may adapt legal institutions unknown in Spain to Spanish law. Such institutions may be replaced by another or others which have equivalent legal effects attached to them and which pursue similar aims and interests. Any party may challenge the adaptation of the measure directly before a court.

[…]

Translation by the Spanish Ministry of Justice first published in Ministerio de Justicia, Spanish Civil Code (Colección: Traducciones del derecho español, 2012). Translation of art 9(4), 9(6) and 9(7) as amended by Law 26/2015 of 28 July 2015 and art 107(2) as amended by Law 15/2015 of 2 July 2015 by Prof. Dr. Pedro A. de Miguel Asensio, Universidad Complutense de Madrid (Spain).

Unofficial translation by Prof. Dr. Pedro A. de Miguel Asensio, Universidad Complutense de Madrid (Spain).

Unofficial translation by Prof. Dr. Pedro A. de Miguel Asensio, Universidad Complutense de Madrid (Spain).