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Does the amendment of a foreign judgment require an exequatur first?

In applications to amend foreign judgments, there have traditionally been two problems: The first makes reference to international jurisdiction, in other words, what Judge can amend a judgment handed down by a foreign court with regard to minors or child support.

We already made reference to this issue in our article from 13 September 2017, clarifying that the same international jurisdiction rules that apply to minors and child support must apply to any amendment relating to them, pointing out the inadaptation of Article 775 of the Civil Procedure Act to international matters.

This article can be found at . What are the rules on international jurisdiction regarding the amendment of measures in relation to minors?

However, in the amendment of foreign judgments, there is also a second issue to be considered: whether or not there is the need to obtain the exequatur relating to the foreign judgment first in order to amend it.

It seems obvious that prolonging an amendment of measures (minors or child support) by requiring the exequatur of a resolution in order to amend it does not make much sense.

While this issue has long been resolved in the area of EU regulations (which have always provided for incidental recognition), with the amendment of non-EU judgments there has been case-law of all sorts, sometimes requesting the exequatur relating to the foreign judgment in order to amend it, and sometimes not.

Law 29/2015 which entered into force on 30 August 2015 on international legal cooperation in civil matters (known as LCJIC in Spanish) resolved this issue by introducing incidental recognition in its Article 44: “When the recognition of a foreign resolution is considered in an incidental manner in legal proceedings, the judge hearing the case shall rule in relation to said recognition within the legal proceedings in question according to the provisions of the procedural laws. The effectiveness of the incidental recognition shall be limited to what is resolved in the main proceedings and shall not prevent the application of an exequatur in relation to the foreign resolution”.

The LCJIC clears up all doubts regarding the validity of this incidental recognition to amend foreign judgments in its Article 45, pointing out that a foreign resolution may be amended by Spanish jurisdictional bodies provided that it has already obtained the relevant recognition through the main or incidental channel.

The judgment of the Provincial Court (AP) of Zaragoza of 28 November 2017 addresses this issue. The Court of First Instance indicates that it does not have jurisdiction to amend the measures as the judgment was handed down by a foreign judge (Algeria) and that, moreover, it cannot amend it until it has been subject to the exequatur procedure.

The Provincial Court of Zaragoza clarifies that both legal arguments are incorrect and that there is no need for an exequatur, rather the recognition required to amend a judgment may be that of an incidental nature.

Taking into account how long exequatur proceedings can go on for in our Courts (especially due to the notifications to non-EU states), these articles incorporated by the LCJIC will allow amendments to be made to judgments within a reasonable period, reinforcing the right to a process without any undue delays, particularly in these issues where speed is of the essence.

 

Yolanda Dutrey

Yolanda Dutrey es licenciada en Derecho por la Universidad de Zaragoza, doctora en Derecho por la Universidad Complutense de Madrid y Master en Derecho comunitario por la Universidad Complutense.

Tiene numerosas publicaciones en monografías, libros y revistas en diversas materias de Derecho internacional.

Es profesora titular de Derecho internacional privado de la Universidad Rey Juan Carlos en Madrid e imparte másteres de especialización en diversos ámbitos del Derecho.

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