SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Carmen Serrano, López-Ibor DPM
6.4 Liability for Damages for the Applicant Once the injunctive relief has been adopted – unless revoked due to the defendant’s opposition – the main process will continue until there is a final judgment on the merits of the case. If the judgment is granted in favour of the defendant and those measures have already been enforced and executed, the applicant for the injunction will be held liable for damages suffered by the party who requested and executed injunctive relief (Section 74 SCPA). Therefore, and unless expressly decided otherwise, Section 728.3 of the SCPA requires the applicant for the injunction to post a deposit in a sufficient amount to cover the potential damage to be caused to the par- ty suffering the injunction as well as to compensate, in a speedy and effective manner, the damages that the adoption of the injunction may cause to that party. 6.5 Respondent’s Worldwide Assets and Injunctive Relief Injunctive relief may be granted against any assets of the respondent, regardless of their location. 6.6 Third Parties and Injunctive Relief Injunctive relief may only be obtained against the defendant and therefore not against other parties. 6.7 Consequences of a Respondent’s Non- Compliance Once granted, an injunction is automatically enforced by the court using any means necessary. Actions tak- en by the defendant aimed at hindering its application may even result in criminal liability due to the obstruc- tion of justice.
• The petitioner has to provide the court with solid arguments about the need for injunctive relief due to a potential risk in the course of the proceed- ings (periculum in mora). This means that if the measures are not adopted, the effectiveness of the protection that could be granted by an even- tual favourable judgment would be prevented or hindered. • The petitioner has to deposit a bond ( caución ), which will be determined by the court but must be enough to cover the possible damages that the defendant may suffer if the claim is dismissed. Therefore, the purpose of the bond is to bear the risk of possible damages the interim measure may cause to the defendant’s wealth. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The Spanish legal system allows injunctive relief to be requested at the time the statement of claims is filed. Nevertheless, Section 730.2 of the SCPA allows injunctions to be sought prior to the main proceeding. This is possible if, at the relevant time, the applicant alleges and evidences reasons of urgency or need. If this is the case, the measures adopted on an urgency basis will cease after 20 days if the main claim is not filed before the court. The applicant would then be bound to pay all related costs (including the potential loss caused to the party that suffered the effects of the injunction). In exceptional cases, if the applicant properly justi- fies the existence of urgency, the court may order an injunctive relief in the following five days without hear- ing the defendant (Section 733.2 SCPA). 6.3 Availability of Injunctive Relief on an Ex Parte Basis The possibility of injunctive relief being granted ex parte or inaudita parte only applies in extremely exceptional circumstances where the knowledge of the proceeding by the defendant could gravely preju- dice its efficacy. After its adoption, it must be notified to the concerned party, who may then file allegations.
7. Trials and Hearings 7.1 Trial Proceedings
Trials in Spain start with the statement of claims, which is filed by the claimant, followed by the written state- ment of defence (or opposition), filed by the defendant within a ten or 20-day period after the notification of the statement of claims, depending on the nature of the trial. The defendant may also include in its opposi- tion an additional claim against the original claimant or third parties ( reconvención ).
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