The recognition of foreign judgements is under the scope of international law. The sources of International Private Law work in a hierarchical way. Therefore, they follow a pyramidal order where the Institutional Law of the European Union is the one that must be applied first. In the case of a conflict where one of the two countries involved isn´t a member of the EU, then one must examine whether it exists a bilateral convention between these two countries. Only when none of the involved countries are members of the EU or other association nor have entered a bilateral convention, then the national law will be applied.
What is the recognition and execution of foreign sentences and what does the legal concept “exequatur” imply? Why do we need it?
When someone obtains a judgement, or a court decision that has been dictated in another country than Spain, it isn’t always possible to execute it in Spain. In that case, a procedure must be initiated to recognize its efficacy and validity, so it may be enforced in our own country.
Let´s have a look at which regulation ought to be applied by making a few examples, taking into consideration that each country implies different rules.
I) European Union Members
In the case of a sentence or a court decision originating from another member state, then the recognition and enforcement is automatically enforced. That is if the court, who dictates the sentence, completes it according to the annex of the resolution and translates it to the official language of the recipient country where the sentence is supposed to be executed.
This decision may be enforced in Spain immediately if it´s here where, for example, the goods pending of seizure are located.
Whether the Regulation 44/2001 (known as Brussels 1) or the Regulation (EU) 1215/2012 (Brussels 1 bis) is to be applied depends on the date when the procedure was originally initiated.
The „Brussels I bis” Regulation will be applied to those petitions of recognition or execution of foreign judgements initiated after the 10 of January of 2015, while for those initiated before the „Brussels I“ Regulation will still be applied.
II) Non members of the EU but members of the European Commerce Association (EFTA), those are, Norway, Iceland, Switzerland and Liechtenstein.
These countries invoke the Lugano Convention of 2007, which was enforced in Iceland the 01. 05. 2011. Norway ratified it the 01. 07. 2009 and it was enforced the 01. 01. 2010, finally Switzerland ratified it the 19. 12. 2009 and it was enforced the 01. 01. 2011.
Liechtenstein is the only country that hasn´t signed „Lugano 2007“, which is why they still apply the „Lugano 1988“.
III) Non members of the EU, nor the EFTA, but subscribers of the Nº 16 Convention about the recognition and execution of foreign sentences in the subject of civil and commercial law from the Hague Conference on Private International Law (HCCH).
When the other country isn´t a member of the European Union, The Hague Conference on Private International Law will be considered. This is an international organization, composed by 83-member states and its target is to search for a homologation of the Private International Laws on an global level.
The Convention that regulates these matters is the Convention Nº. 16 about the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters. To apply this regulation, a member state needs to be a signee of this specific regulation since it isn´t enough just being a member to the HCCH.
IV) Non members of the EU, nor the EFTA, nor subscribers of the Convention Nº. 16 of the HCCH.
In case of the existence of a bilateral convention between the two countries, then that convention ought to be applied.
Spain hast entered bilateral conventions regarding the recognition of international judgements with the following countries: China, Colombia, Israel, Morocco, Mauritania, Mexico, Romania, Russia and Tunisia.
V) The Spanish law about the recognition and enforcement of foreign judgements.
If none of the countries belong to the EU, aren´t a signee to the Convention Nº. 16 of Hague Conference and doesn´t have any bilateral convention regarding the matter (i.e. USA), Spain ought to apply its national law which is the LEC, known as the exequatur (Ley de Enjuiciamiento Civil / Civil Trial Law).
That is, an ensemble of rules according to which a state verifies if a judicial judgement coming from a foreign court collects or not the required requisites that allow it´s recognition or homologation.
The regulation of the exequatur in Spain, since August 2015, is the Law 29/2015 (Title V, Arts. 41 to 61) about legal international cooperation in civil matters.
Spanish exequatur procedure:
The procedure of the recognition of international judgements in Spain, in which the parts would have to be represented by a barrister and assisted by a lawyer, may be initiated by a claim requested by whoever who has a legitimate interest.
The exequatur will be reported to the Court of First Instance of the place of residence of the party who wants a judgement to be executed, or the home address of the person referred to in the judgement.
Alternatively, the territorial competence would be determined by the place of execution or where those judgements and resolutions must be enforced.
For judicial resolutions in commercial matters, the Commercial Courts will be competent and not the First Instance ones.
The reported claim and documents will be examined by the judicial secretary, who will dictate a decree admitting it and transferring it to the respondent party, so it can oppose, in the case the party wishes to do so.