SPAIN Law and Practice Contributed by: Miguel Cases, Toni Barios, Joaquín Fabré and David Navarro, Cases & Lacambra
case without contesting notification in the court of origin, provided that the law of the state of origin permitted notification to be contested; or (b) was notified to the defendant in the requested state in a manner that is incompatible with fundamental principles of the requested state concerning service of documents; • the judgment was obtained by fraud in connection with a matter of procedure; • recognition or enforcement would be manifestly incompatible with the public policy of the request- ed state, including situations where the specific proceedings leading to the judgment were incom- patible with fundamental principles of procedural fairness of that state; • the judgment is inconsistent with a judgment given in the requested state in a dispute between the same parties; • the judgment is inconsistent with an earlier judg- ment given in another state between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested state; or • the judgment awards damages, including exem- plary or punitive damages, that do not compensate a party for actual loss or harm suffered. The specific reasons why the Spanish courts could refuse the recognition and the enforcement of a judg- ment pursuant to Law 29/2015 (if applicable) are the following: • when the judgment is contrary to public order; • if the defendant was not given formal notice or equivalent document on a regular basis and in suf- ficient time to defend themselves; • if the decision was ruled on a matter in respect of which the court of origin does not have a reasona- ble connection or if the court of origin has ruled on matters in respect of which the Spanish courts are exclusively competent. The exclusive jurisdiction of the Spanish courts includes matters relating to the incorporation, validity, nullity and dissolution of companies or legal entities domiciled in Spain, and any decisions and resolutions of their governing bodies, the validity or nullity of any recording in a Spanish registry, and the recognition and enforce-
ment of any judgment or arbitration award in Spain that has been obtained in a foreign country; • if the decision was irreconcilable with an earlier decision issued in Spain or in another country (provided that this decision issued abroad fulfils the requirements for it to be recognised and enforced in Spain); or • when there is a pending dispute in Spain between the same parties and with the same object, initi- ated before the foreign proceedings. 6.4 A Foreign Lender’s Ability to Enforce Its Rights Generally, there is no restriction on foreign lenders’ ability to enforce their rights under a loan or security agreement. Also, if an agreement was to be enforced by a foreign lender (or agent, in a syndicated transaction), it shall be duly empowered to this end. In this regard, a power of attorney must be granted before a Notary Public in the relevant jurisdiction, which fulfils all the required formalities under Spanish law, and duly apostilled if necessary pursuant to the Hague Convention of 5 October 1961. Notwithstanding the foregoing, please see 3.2 Restric- tions on Foreign Lenders Receiving Security in con- nection with the restrictions that could be imposed by the government on the transactions between resi- dents and non-residents and the suspension of the liberalisation regime in certain circumstances due to the nature of the specific transaction. Also note that for any document to be admissible by a court or authority in Spain which is not in Spanish, it must be accompanied by an official sworn translation into Spanish.
7. Bankruptcy and Insolvency 7.1 Impact of Insolvency Processes
The main effects of the declaration of insolvency can be classified within three different categories: (i) effects on court or arbitration proceedings; (ii) effects on claims; and (iii) effects on agreements.
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