SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henríquez de Luna, Virginia Jover and Pedro Echeguren, López-Ibor Abogados
Notice of claims, demands and other judicial documents Finally, Spain will apply the provisions of the Hague Convention of 1965 to notices and documents com - ing from UK courts, which in essence requires ser - vice through the Spanish Ministry of Justice as central authority and the local court of the domicile of the defendant – a procedure that takes considerable time to be completed. As a result of all these changes, the English jurisdic - tion is expected to become a less attractive route for deals involving Spanish enforcement. Therefore, as an alternative solution, some international businesses are considering including arbitration clauses in their con - tracts, as arbitration does not come within the scope of the Recast Brussels Regulation or the Lugano Con - vention. With 168 signatory states, the New York Convention on the Recognition and Enforcement of Foreign Arbi - tral Awards 1958 is a valuable alternative. 3.2 Variations in Approach to Enforcement of Foreign Judgments Judgments from EU member states differ from those from third countries, as they do not need to be final in order to be enforceable. Enforcement for EU Judgments In civil and commercial matters, the procedure for recognising and enforcing judgments or authentic instruments from EU member states is standardised, provided they are enforceable in the member state of origin (per Chapters III and IV of the Recast Brussels Regulation). No distinction is made between different types of judgment. Recognition and enforcement may be suspended according to Article 38 of the Recast Brussels Regulation if the EU judgment is challenged in the member state of origin. Enforcement for Third-Country Judgments There is no distinction between different types of judg - ments from third countries: they are all considered foreign judgments, regardless of the state of origin. In order to enforce third-country judgments, it is neces - sary to apply the following:
• bilateral treaties concerning the enforcement of foreign judgments; or • domestic legislation, in the absence of any bilateral treaty, such as the Legal Co-operation Act or the CPA, as a subsidiary provision should apply. In principle, only final judgments coming from third countries are enforceable in Spain. Interim orders dic - tated by third-country courts can only be enforced if refraining from enforcement will run against the prin - ciple of due process of law (tutela efectiva), and pro - vided such foreign measure was not adopted ex parte. 3.3 Categories of Foreign Judgments Not Enforced The following paragraphs list and categorise the for - eign judgments that are not suitable to be enforced, depending on the grounds alleged for the refusal of recognition and enforcement. EU Judgments Grounds for refusal of recognition Despite the automatic recognition of any EU judg - ments, the following judgments will be refused enforcement, according to Article 45 of the Recast Brussels Regulation: • Any judgment that is manifestly contrary to public policy (ordre public) in the member state addressed. • Any judgment given in default of appearance, if the defendant was not served with the document that institutes the proceedings in sufficient time. • Any judgment that is irreconcilable with a judgment given between the same parties in the member state addressed. • Any judgment that is irreconcilable with an earlier judgment given in another member state, or in a third state, involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the member state addressed. • Any judgment conflicting with: (a) Sections 3, 4 or 5 of Chapter II of the Brussels Recast Regulation where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employ - ee was the defendant; or
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