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Requirement of finality in the exequatur of foreign judgements

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Flora Calvo is an expert in international family law at Winkels Abogados law firm.

Requirement of finality in the exequatur of foreign judgements

Flora Calvo

14 February 2016

For the purpose of being recognised in Spain, foreign judgements must fulfil a set of requirements that vary depending on the applicable legal framework. The most common is the requirement of finality for which an exequatur is sought.

This requirement is not binding in the majority of EU judgements that are recognised and enforced by EU regulations; however, it is usually an essential requirement within the general conventional framework and, certainly, in application of new Law 29/2015 of 30 July on International Legal Cooperation.

This statement cab be corroborated in the recent record of proceedings 62/2016 of the Court of First Instance number 1 of Alcobendas, dated 4 February 2016 (unpublished), in which the applicant sought recognition of several judgements regarding divorce, parent-child contact measures, maintenance, and property ownership issues between the spouses from Hong Kong (China) to whom the 1992 Agreement between the Kingdom of Spain and the People’s Republic of China on Legal Assistance in Civil and Commercial Matters was applicable.

Article 22.3 of this Agreement states that judgements shall not be mutually recognised in the event «they had not acquired the force of res judicata or were not enforceable according to the country of origin».

In this case, only one final ruling was granted on the divorce, but not on the rest of the abovementioned judgements.

In light of the requirements stipulated by the Spanish Court, the requesting party claimed to be incapable of submitting a certificate of final judgement because: «neither the Courts nor judges of Hong Kong have the power to certify that the rulings made are final and enforceable and a period of 28 days is given in which judgements on matrimonial matters may be appealed. Upon expiry of this period, the judgements automatically become final and enforceable, subject to submission of a report drawn up by a practising lawyer in Hong Kong and a series of reasons whereby it is understood that the judgements, for which enforcement is sought, are final».

These reasons prove insufficient for the Court to consider the judgement final, stating: «Nevertheless, there is indeed a ruling, submitted by the requesting party, which declares the dissolution of the marriage final after no «sufficient cause» was submitted within six weeks; however, no ruling was submitted stating the finality of the other judgements for which recognition and enforcement is sought. For this reason, due to the lack of an essential requirement pursuant to Spanish legislation and the Bilateral Agreement itself (…), the request must be denied except for the declaration of the ruling issued on marriage».

The ruling is faultless given that the Bilateral Agreement, which is essentially applicable, is not at all flexible with regard to accrediting the final decision and requires documentary evidence thereof. In an internal context, the situation was identical to that described for the Hispanic-Chinese Bilateral Agreement until the LCJIC (Law on International Legal Cooperation in Civil Matters) entered into force.

Article 41.1 clearly states that only final judgements delivered in contentious proceedings shall be eligible for recognition and enforcement in Spain. This corresponds to the former system.

The new version is based on the act of accrediting the final judgement, as article 54.2 c) states that evidence shall be provided by means of any other documenting supporting the finality and enforceability, where applicable, of the foreign judgement in the country of origin, with this information appearing in the judgement itself or inference thereof being drawn from the law implemented by the court of origin.

It is this last point that shapes the legislative change to the system, as it allows parties to accredit the requirement by evidencing foreign law, without the need to submit a document that expressly refers to the finality of the judgement. This possibility had been judicially admissible by a ruling in the past (e.g. Judgement of the Court of First Instance of Madrid number 66 of 13 February –unpublished–), in which the Court allowed the finality, which was not evident in the foreign divorce judgement for which an exequatur was sought, to be accredited through credible evidence of the validity and content of the foreign law applied by the Court of origin to the case.

In conclusion, the new LCJIC loosens restrictions on accrediting the finality of judgements for which an exequatur is sought by evidencing foreign law rather than the sole submission of any supporting document which is, on occasions and, depending on the country that issues the judgement, so difficult to obtain.

 

Flora Calvo

Flora Calvo es licenciada y doctora en Derecho por la Universidad Complutense de Madrid y diplomada en Derecho francés por la Universidad de París XI Jean Monnet Sceaux. En la actualidad es miembro del despacho Winkels Abogados y profesora del área de Derecho internacional privado de la Universidad Rey Juan Carlos de Madrid.

Calvo colabora en multitud de publicaciones y cuenta con numerosos artículos publicados en revistas como ‘La Ley’, ‘Otrosí’, ‘Sepín‘ e ‘Iuris’.

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