Recognition and Enforcement of Foreign Judgements

Private international law governs the international elements in matters of private law. It also determines whether and under which conditions a judgment rendered by a foreign court will be recognized and enforced by a national court. In Spain foreign judgments are recognized based on bilateral or multilateral treaties. Within the European Union, enforcement of judgments is covered by the following EU Regulations:

  • EC 44/2001
  • EC 1346/2000 (insolvency proceedings).

For Non- EU countries the main international organisations concerned with developing and harmonization of these rules are :

  • the International Institute for the Unification of Private Law (UNIDROIT),
  • the Hague Conference on Private International Law (HCCH or Hague Conference),
  • and United Nations Commission on International Trade Law (UNCITRAL).

Enforcing a court decision means complying with and obtaining the full right gained by the party that won the dispute. This may involve a request by a plaintiff for the return of a certain amount of money, the right to ask a defendant to do something or to refrain from doing something, or a request to have a right recognised by registration in public registries. When trying to enforce a foreign judgment in Spain a specific set of rules and procedures apply.

The law which governs this procedure will vary depending on the country in which the judgment originated, whether it was from a member of the European Union or from another non-eu  country. Within European Union The rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in European Union (EU) countries is covered by Regulation no. 44/2001, which  provides that a judgment given in an EU country is to be recognised without special proceedings, unless the application for recognition is contested. A declaration that a foreign judgment is enforceable is to be issued following purely formal checks of the documents supplied.

The regulation lists grounds for non-enforcement however, courts are not permitted to raise these of their own motion. I also defines “Judgment” as any judgment given by a court or tribunal of an EU member, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance.

The Regulation 1346/2000 (Insolvency Proceedings) establishes a common framework for insolvency proceedings in the European Union (EU) and has been incorporated into Spanish Law my means of the Insolvency Act (Ley Concursal). Its purpose regarding insolvency proceedings is to avoid assets or judicial proceedings from being transferred from one EU country to another in order to obtain a more favourable legal position to the detriment of creditors (i.e. “forum shopping”). The regulation also provides for the automatic recognition of individual member state insolvency proceedings within the EU.. The applicable jurisdiction for insolvency proceedings as provided by the regulation, is the one of the court in the member state where the debtor’s centre of main interests is located.

The regulation does not apply to entities with a centre of main interests outside of the EU. Procedure If the judgment required to be enforced in Spain is the decision of a court within the EU the application must be filed in the relevant court for a declaration that the foreign judgment is enforceable in Spain, this is known as Exequatur. The declaration of enforceability (“exequatur”) must be issued after certain formalities have been completed and must be served on the other party, who may only challenge it in the courts. A recognition of a foreign judgment may be refused if : the recognition was againts public policy, it is irreconcilable with an earlier judgment,  the document initiating the proceeding has not been served in good time or the other party does not appear.

Spanish law requires that all Court decisions be notified to the other party prior to enforcement,  in order to allow the possibility for appeal or reaching an agreement without the need for enforcing the judgment. These procedures can be quite complicated and it is always advisable to make the application for enforcement through a lawyer or any other legal professional. Outside the European Union including USA Spanish law regulates the recognition and enforcement of foreign judgments from non-EU member countries  in its Code of Civil Procedure (LEC arts. 951-958 ). In order to execute a judgment in Spain application must be made in the appropriate jurisdiction . Rules of jurisdiction The basic principle of jurisdiction exercised in Spain is that it is determined on the basis of the country in which the defendant is domiciled, regardless of their nationality. When it comes to  judgments from countries outside the EU Spain follows The Hague Convention which states that the Courts of First Instance have jurisdiction over defendants whose domicile or place of residence is located within its territory.

The exequatur process consists of a review by a court to determine if the request for recognition meets the requirements established by Spanish law. However, the judge may only examine the substance of the foreign judgment to ascertain whether or not it may be enforced in accordance with Spanish law.

The law mentions specific  requirements to obtain recognition:

• the execution to be issued in pursuit of a personal action. The judgment must not affect the ownership of property located in Spanish territory.

• the defendant must have been summoned properly before the court during the trial .

• That enforcement of the judgment must not be contrary to Public Policy.

It is always advisable to translate the judicial decision into Spanish., a sworn translation is always advisable. An Apostille in most cases. Although the application can be filed in the Spanish Ministry of Justice or the consulate, due to its complex nature, the most efficient and convenient way is to file the application for recognition through a lawyer in Spain.

Enforcement

The same court that recognises the foreign judgement is responsible for its enforcement. The steps of the enforcement procedure will vary with the type of judgement. As determination of jurisdiction in international disputes as well as recognition and enforcement of foreign judgments can be a complicated and lengthy process, we suggest ensuring that jurisdiction and applicable law in the event of a dispute are agreed  in detail by the parties in any cross-border agreements.

For recognition and enforcement of foreign judgments contact us: 951 082 338 or email: info@lawyersabogados.es