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Is lis alibi pendens applicable with foreign states?

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Yolanda Dutrey

31 January 2016

Is it possible to suspend proceedings being heard by a Spanish court because there is another court hearing a different case between the same parties, with the same purpose and cause in a foreign country?

In other words, is lis alibi pendens applicable with foreign states?

In the past, EU Regulations controlled this issue in Community territory. Nowadays, the new Law on International Legal Cooperation addresses lis alibi pendens with third-party states or when EU regulation is not applicable.

The «first come, first served» solution is present in both EU regulation and Spanish law but with very significant differences:

  1. In EU regulation

If EU Regulations 1215/2012 (Brussels I recast -unless there is a choice of court agreement), 2201/2003 (Brussels II), 4/2009 (Brussels III) and 650/2012 (Brussels IV) are applicable to the civil and commercial matters that they regulate, the court hearing the second claim must suspend the proceedings of its own motion.

If the first court declares itself competent, the second court shall decline jurisdiction  in favour of the first.

The court hearing the second claim may not refuse a stay of proceedings or refrain from discovering if the first court is declared competent.

Thus, for example, if between a mixed marriage one party first files a petition for divorce in France and the other party in Spain at a later date, the Spanish court must of its own motion stay its proceedings and, if jurisdiction of the French court is established, the Spanish court must decline jurisdiction to that court, rendering itself unable to hear the case for divorce.

Regulation 1215/2012 also incorporates the regulation on lis alibi pendens with non-EU states (art. 33) offering different resolutions to those established for EU matters and very similar to those set forth in the Law on International Legal Cooperation, to which it served as a guideline.

  1. In the Law on International Legal Cooperation

If EU Regulation is not applicable, the Law on International Legal Cooperation, Law 15/2015 of 30 July, in force from 20 August (art. 2º), is applied. Lis alibi pendens is set forth in art. 39 and, although it respects the time-based criteria, it contains important differences compared to EU Regulation.

The suspension is at the request of the party following a report from the Office of the Public Prosecutor and not of the second court’s own motion as stipulated in EU Regulation.

Acceptance to lis alibi pendens is at the court’s discretion, and in no way obligatory. With the cooperation law, Spanish courts faced with a case of lis alibi pendens may stay proceedings, but are not obliged to do so as per EU Regulations.

The Spanish court may stay proceedings in Spain if certain requirements in the foreign country are met. These include:

1.- The foreign court hearing the case must be reasonably connected thereto.

2.- It is likely that the foreign court will issue a judgement that is recognisable in Spain (which was until now known by the doctrine as a judgement of recognisability)

3.- The court must deem the suspension necessary for proper administration of justice.

If the Spanish court stays proceedings, it may agree upon the resumption of the process in Spain at any time, at the request of the party and following a report from the Office of the Public Prosecutor, when any of the following circumstances occur: the jurisdiction of the foreign court is not established; the proceedings before the foreign court are suspended or dismissed; it does not believe that the foreign proceedings are going to conclude within a reasonable time; it believes that proceedings should be resumed in Spain for proper administration of justice; or it is aware that the judgement to be passed abroad shall not be recognised in Spain.

The Spanish court shall only terminate proceedings in Spain when foreign proceedings are concluded with a judgement that may be recognised and, where applicable, enforced in Spain.

In short, lis alibi pendens with third-party states is at the request of the party and at the discretion of the court. Proceedings in Spain may be suspended if the ruling of foreign proceedings is believed to be valid in Spain; recovered if considered appropriate and terminated only when a foreign judgement has been issued that is capable of being recognised and enforced, adopting all necessary measures to guarantee effective legal protection even if justice is served in the foreign state.

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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