23/03/161 COMBAR VENICE MARCH/APRIL 2016 INTERNATIONAL ENFORCEMENT OF JUDGEMENTS IN SPAIN Javier Sans Roig Of Counsel Pla & Roig Aran Madrid & Barcelona

Spanish law 29/2015 of july 15 on 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…”? 23/03/162

Applicable to enforcement of US court decisions What 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 23/03/163

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 23/03/164

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. 23/03/165

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 c – If rights of defense have not been respected. (Importance of serving notice) Sec 46.1.b 23/03/166 Plus c’est la même chose (2 of 3)

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 23/03/167

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 23/03/168

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 23/03/169

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) 23/03/1610

11 Javier Sans Roig Of Counsel Pla & Roig Aran Madrid & Barcelona 23/03/16 ROOM FOR COOPERATION !