COMBAR VENICE MARCH/APRIL 2016 INTERNATIONAL ENFORCEMENT OF JUDGEMENTS IN SPAIN

1. COMBARVENICE MARCH/APRIL 2016 INTERNATIONAL ENFORCEMENTOF JUDGEMENTS IN SPAIN Javier Sans Roig Of Counsel Pla & Roig Aran Madrid & Barcelona js@bra.es

2. Spanish law 29/2015 of july 15on International legal cooperation in civil matters(in defect of specific treaty) After 134 years of Supreme Court decisions: A brave new world …or “plus ça change…”?

3. Applicable to enforcement of US court decisionsWhat about the UK? • Matters dealt with in the Hague Convention, on international assistance, where Spain and the US are parties, would be excluded. • Not applicable to UK as EEC regulations take precedence… for the time being? Will be in the event of a Brexit. A minor worry? • No Change in Enforcement of Arbitration Awards

4. Brave new world? • The general rule is that Cooperation must be provided, even if there is no reciprocity • Possibility of a “Black list” of uncooperative countries • Applies – always in defect of specific treaties -- to: • Service of documents, notices, subpoenas • Carrying out and obtaining evidence (including copies of documents, party & witness statements) • Obtaining and reporting on the provisions of foreign & domestic law • Enforcement of foreign Court decisions and Court settlements • Direct enforcement of certain documents if possible in the country of origin and not contrary to public order in Spain

5. Or “plus c’est la même chose”(1 of 3) • Enforcement of Court decisions • Is subject to a specific procedure in a Court of Law • Subject to the confusing (when defendant not subject to an insolvency procedure) rules of eventual competence of Spanish Commercial Courts • Reasons for non recognition essentially the same as before but with slight differences.

6. Plus c’est la même chose (2 of 3) • Enforcement of Court decisions will be denied: • If the decision can be appealed in the country of origin (Section 41) • If it does infringe exclusive competences of Spanish Courts (i.e. entries in Spanish Registers) or lacks a reasonable connection with the matter (anti forum shopping) Sec. 46.1.c • If rights of defense have not been respected. (Importance of serving notice) Sec 46.1.b

7. Plus c’est la même chose (3 of 3) • Enforcement of Court decisions will be denied: • If the obligation declared is not valid in Spain (public order) Sec 46.1.a • If it infringes the principle of “litis pendens” with a case earlier started in Spain. • If it infringes the principle of “res judicata” • A) In Spain • B) In any other state, when the decision passed in such state meets the requirements to be recognised in Spain

8. AN UNHAPPY MIXTURE? • Essentially the same principles for denial of enforcement as before, but… • Need for a double procedure of recognition in the event of res judicata “in any other state”? • Alarming apparent contradiction: section 45 (possibility of review by the Spanish Courts) vs. 48 (prohibition of review “on the substance”) • In general, combines excess of detail with general principles

9. BUT SOME CLEAR PROGRESS • Solves some contradictory Supreme Court decisions on applicability of Lex Fori • One single procedure for recognition or denial thereof, and (if so desired) enforcement • Extensive to Mareva Injunctions & Class actions (“ ma non fanatico”) • “Foreign” measures can be applied by analogy • Partial and incidental recognition

10. A new (and exciting) possibility • The enforcement of what we call “executive documents” • Definition almost impossible to translate • But clear advantages if applicable • Hence, wide enough to explore (i.e. see the NY “restraining notice” in Peter Chaffez paper)

11. ROOM FOR COOPERATION ! Javier Sans Roig Of Counsel Pla & Roig Aran Madrid & Barcelona js@bra.es