Extraterritorial Foreign Judgments and Authentic Acts: Validity and Effects in Spain

Posted on Jul 3, 2024 in Law & Jurisprudence

ITEM 6: EXTRATERRITORIAL FOREIGN JUDGMENTS AND AUTHENTIC ACTS: FORM AND EFFECTS IN SPAIN FOR FOREIGN PUBLIC DOCUMENTS

Regulation of Formal Validity of Acts and Legal Business in Spanish Private International Law

The first thing to determine is the ability to perform acts and transactions, that is, legal capacity and acting. This is regulated in Article 9.1 DC, which states the governing national law of the individual.

The second is to determine the law applicable to the merits, the law governing the validity of the act/contract/business/etc. It is the law that the judge will apply to agree with one party in case of a conflict.

All legal proceedings and transactions must have formal requirements, so they will have to abide by the law of contract to be valid. The law applicable to the validity of an act or form of legal business is what we are going to study in this issue.

Often, the law gives freedom of form for various acts or businesses, but sometimes not. When there is freedom, there is no problem, but when there is no freedom, one must follow what is stated by law. The problem is that the law applicable to the form is scattered along our OJ. Our system has the standard that is the general regulation governing the form of legal acts and transactions, which is Article 11 CC, a conflict rule.

In this area, there are also those that go to the “hierarchical pyramid”: 1. Union, 2. Scope conventional, 3. State level. We only apply the 11 CC where neither the 1st nor the 2nd attend.

For example, in the field of law applicable to the form of wills, in this case, there is an R. But if there is an international C., it is the Hague Convention of 1951 on the law applicable to the form of wills.

Procurement is a conventional standard; it is the Rome Convention regulating the issue of the form of contracts.

For its part, Article 11 CC provides the validity of legal acts or businesses. It tries to avoid a legal act or transaction becoming invalid because of defects, providing alternative solutions for the formal validity of business and legal acts. These shall be valid if it conforms to: 1. the country where granted, 2. the law of substance, 3. national law party, etc.

Article 11

  1. The forms and solemnities of contracts, wills, and other legal acts shall be governed by the law of the country to be granted. However, forms concluded with the formalities required by the law applicable to their contents are also valid, as well as those held under the personal law or disposing of common grantors. Instruments and contracts relating to immovable property granted under the forms and solemnities of the place where they are situated shall also be valid.
  2. If such acts are issued on board ships or aircraft during navigation, they shall be held in the country of its flag, license plate, or registration. The ships and military aircraft are considered part of the territory of the State to which they belong.
  3. If the law regulating the content of deeds and contracts requires, for its validity, a particular form or ceremony, it will always be applied, even in the case of granting those abroad.
  4. Spanish law will apply to contracts, wills, and other legal acts approved by diplomatic or consular officials in Spain and abroad.

Then, we relate the rules governing the following subjects:

  • In arbitration, the rule governing the law applicable to the form of an arbitration agreement is contained in Article 9 of the Arbitration Act 2003. The New York Convention, which regulates the recognition and enforcement of foreign arbitral awards effectively universally in its Article 2, governs the validity of the form.
  • Extra-contractual obligations regarding the rule are the Rome II Regulation 864/2007 (law applicable to contractual obligations and how-Art.21-).
  • In matters of succession, the rule is the international convention governing the law applicable to the form of testamentary dispositions. It is the Hague Convention 05/10/1961, universally effective and completely displaces Article 11 of CC.
  • In contractual matters, the standard is the international convention in Rome, 19/06/1993, on the law applicable to contractual obligations. It is also a universal agreement which effectively moves also to Article 11 of CC. This agreement contains a specific provision of the law applicable to the form of contracts in Article 9. This agreement has become an EU regulation but has not yet entered into force.
  • In terms of international sales of goods, the Vienna Convention on 11/04/1980 will apply. The form is regulated in Article 11.
  • Article 11 of the CC has a residual character and has the following regulation: it proclaims the principle of freedom of form and also provides a very flexible system that you are looking at all times is to promote the most of that formal validity of legal acts and transactions, giving many alternatives to make sure that will be valid from the point of view of form. Article 11 of CC is a conflict rule as to the applicable law. There are also rules on conflict with Article 11, Articles 9, 10, and 107 CC.

Effectiveness in Spain of Foreign Public Documents

Here we will see a public document issued by a foreign authority or registration evidence effects and executive effects (the executive effects refer to the foreign judgments). To this, it must meet the requirements contained in Articles 144 and 323 of the LEC (the same as for the recognition and enforcement of judgments), and are as follows:

  • The document must meet all the requirements that exist in the law of the place where the public record is granted.
  • The document has to be authentic (apostille).
  • The document must be translated into the language of the State where it was intended to be effective. In principle, we accept the particular translation.

A special registration, Article 81 of the Civil Registry, and Article 4 of the mortgage law, as to the entries in the registry of property, authorize the registration of a foreign public document.

Exclusive purposes: We must refer to the exequatur, which will follow the same procedure as in the case of a sentence (articles 951 to 958 LEC), and does not distinguish between statements and acts or legal transactions.