SPAIN
1. An Introduction to the Judicial System
The two main statutes regulating the Spanish judicial system, and the civil procedure rules are
the Ley Orgánica del Poder Judicial, dated 1 July 1985 (referred to in this Chapter as the "LOPJ")
and the Ley de Enjuiciamiento Civil dated 7 January 2001 (the Civil Procedure Act, referred to in
this chapter as the "LEC").
While the LOPJ focuses on the organization of the Judiciary and the administration of justice,
the LEC codifies the rules of civil procedure. Thorough significant amendments to the civil
procedure rules came into force on 8 January 2011, superseding the prior LEC, which dated
back to 1881.
Spain, like other continental European countries, has a civil law tradition, and therefore, its civil
procedure rules are not purely adversarial in nature. Common law practitioners will readily
identify several differences:
• The availability of juries is restricted to criminal cases.
• There is no discovery of duty to disclose documents in possession of the other party.
• Witness statements are not taken in writing, exchanged, and filed at an early stage of the
proceedings.
• Spam does not have a two-tier legal profession; thus, the lawyer (abogado) assumes
responsibility for the conduct of proceedings and pleads the case before the courts. Spanish
lawyers (abogados) have the capacity to advocate before the courts.
In court cases where the claim exceeds € 900, litigants are required to appear before the courts
represented by an agent-in-court called the procurador. The procurador is a separate
professional with a law degree who, although not in charge of the client's defense in court, is
the client's legal representative in court. The procurador receives notices and communications
from the court and liaises with the lawyer. Procuradores are retained separately from lawyers,
and lawyers' fees do not cover procuradores' fees. Therefore, litigants are advised to ask
lawyers to quote the cost of procuradores too. Procuradores fees are calculated according to an
officially approved scale.
1.1. Organization of the Judicial System:
In accordance with the LOPJ, the Spanish civil court system is organized into two ordinary
resorts—judges of first instance and courts of appeal. It is customary to refer to judges as "first
instance judges", as they sit in court alone, and to "courts" when referring to the courts of
appeal, where three judges sit. In both resorts, judges and courts operate within the attributed
territorial areas. Reviews before the Supreme Court or the Superior Courts of Justice of each
Autonomous Community are an extraordinary resort.
Civil justice is administered by the Juzgados de Primera Instancia. These are the judges of first
resort in each of the 419 territorial areas or judicial districts into which Spam is divided for
judicial purposes. Each judicial district has a different number of Juzgados de Primera Instancia,
depending on its population (there will often be more than one, and there may be as many as
65 as is the case in the judicial district of the City of Madrid).Judgments and certain orders
issued by the Juzgados de Primera Instancia are subject to appeal before the Audiencia
Provincial, which is a court of appeal. There are 52 Courts of Appeal, one for each province into
which Spain is divided. Section 3.1 in this Chapter develops in more detail the functions and
structure of these two judicial resorts.
1.2. Main Changes Introduced by the New LEC
The LEC was amended in 2001. The new procedure rules Act came into force on 9 January 2001,
and thoroughly modified several important aspects of the Spanish civil procedure. Both Spanish
lawyers and the Spanish judges have been (and in some aspects they still are) becoming
acquainted with the new rules and practice resulting from this reform. Some changes
introduced by the LEC are:
It reduced the number of tracks or procedures in the rules. The new LEC sets out:
A single main track called the ordinary civil procedure (juicio ordinario) which must be followed
whenever the claim amounts to or exceeds € 3,000.(10 A taster track and simplified procedure
called the "verbal procedure" (juicio verbal) which must be followed whenever the amount of
the claim is less than € 3,000 (and in some other matters provided for in the rules).
Some special procedures to entertain claims m matters of family law, wills, division of estates,
recovery of undisputed commercial debts, and proceedings relating to bills of exchange and
checks, remain in force. The new LEC makes proceedings more flexible and speedy by means of:
Simplifying notification of all procedural acts. Enhancing the use of oral proceedings at the first
instance level. Introducing a preliminary hearing with the purpose of focusing only on disputed
facts, completing submissions in the light of the other parties written pleadings (claim,
counterclaim and defense), and clarifying, where appropriate, the relief sought. It is a first step
to issuing determination in Spanish proceedings. The new Act has amended the rules on
evidence-taking. All evidence, including witness statements and expert examination, are now
taken before the trial judge before the closing argument in fact and law are heard. Under the
old LEC, witness statements and other evidence were usually taken before the court clerk,
leaving a verbatim transcript or memorandum in the file. Conventional wisdom said that
evidence was not taken then before the courts, and that judges simply read the files before
entering judgment. This practice no longer continues. The new Act allows provisional
enforcement of first instance judgments without the need of a guarantee or a bond to secure
restitution of the money collected or damages caused to the other party, if the judgment of
appeal reverses the first instance judgment. Also, the new LEC sets out a more efficient system
for the search of assets of the debtor.
The new Act introduces a specific procedure, to collect undisputed commercial debts of up to
€ 30,000. Under the new rules, if the defendant does not challenge the debt, the court will
enter judgment in default, which will allow the plaintiff to apply for enforcement.
The government took the opportunity of endowing the courts with new technical means to
support the record of proceedings, significantly improving the recording of both arguments and
evidence. Now, court cases are recorded onto either CD or video tape. Under the old rules, only
summarized verbatim transcripts could be expected. Furthermore, electronic means of
communication between the court and the parties' representatives are allowed (although most
of the courts have not yet implemented such means), and all hearings are taped and copies of
the CD ROMs containing the taped hearings are delivered to the parties at the end of the
hearing.
• Interim measures now have an all-embracing and concentrated regulation, instead of patchy
and dispersed rules for each interim protection sought.
• The length of the proceedings has been considerably reduced to an average of eight months
in the first resort. Appeal proceedings may last in the range of eighteen months to two years.
Extraordinary reviews before the Supreme Court may take as long as five years, as this court
presently suffers from a dire overload of work.
• Extraordinary reviews available to the parties before the Spanish Supreme Court and Superior
Courts of Justice of each Autonomous Community have been restricted to two courses of
review, with the aim of cutting down on the increasing trend to have cases reviewed by the
Supreme Court. The courts of appeals may reexamine the evidence and the arguments. The
reviews before the Supreme Court are limited to reviews on points of substantive law, and
thus, the court will not re-assess the evidence before it, but rather take as proven the facts
accepted by the court of appeals or infringements of rules of civil procedure resulting in
violation of fundamental rights or due process.
This Chapter will focus on the ordinary track for claims or debts exceeding € 3,000: the juicio
ordinario.
1.3. General Principles
General principles governing civil proceedings include the following:
• Pleaded justice: civil judges and courts will decide and rule on the disputes brought before
them on the basis of the pleadings of the parties (i.e. the facts, evidence and relief pleaded by
each party), except when the law expressly provides otherwise.
• Publicity: hearings are public, and only in exceptional cases set out under the law will they be
held in private.
• Right to use any official language in the proceedings: Spanish is the official language in all
Spanish territories. However, there are other official languages in certain Autonomous
Communities, which the parties and their representatives have the right to use during the
proceedings.
• Party autonomy: the parties have the right to agree on the claim, and therefore, they can
freely discontinue proceedings, settle, or agree to submit the dispute to arbitration, unless the
subject matter of the proceedings affects public policy or the rights of third parties.
• Immediacy: the trial judge who will give judgment has the duty to attend not only the trial,
but also all the hearings and the taking of evidence. The same court will handle the
interlocutory phases of the court case and give interlocutory rulings and the final judgment m
the action (only in the specific cases set out under the LEC can the judge be substituted by
another one).
2. Initiating and Responding to Proceedings
2.1. Steps Required before Proceedings can be Initiated
The LEC does not provide for specific steps or requirements to be taken by a plaintiff before
starting proceedings, as for example, notice to the defendant of the intention to file a
complaint or to follow a protocol of the exchange of facts or grounds of the claim. It does not
require previous mediation either. However, a prior written requirement by the claimant to the
respondent to fulfil the obligations that will later underlie the complaint can, m some cases, be
relevant to support the decision of the court to shift the costs of the proceedings to the
respondent.
An exception to the aforementioned rule is that plaintiffs who have a notarized contract from
which a debt arises, if the balance due is not quantified or cannot be quantified in the light of
the deed (for instance, bank facilities), must serve a notice requesting payment and the balance
due before commencing enforcement proceedings based on the notarized deed.
2.2. Formalities
Whenever the value of the claim exceeds € 900, the parties—both plaintiff and defendant—are
required to appoint an agent-in-court called the Procurador in which the parties must vest the
authority to represent them before the court. The procurador will be in charge of the
day-to-day contact with the court on behalf of the parties. They must also name a lawyer
(counsel) who will be in charge of drafting pleadings, attending hearings, and defending the
interest of litigants before the courts. There is no need to grant a power of attorney in favour of
the lawyer. But the rules require litigants to grant a formal power of attorney vesting in the
procurador the authority to follow the proceedings, and, in addition, if the party does not
attend the preliminary hearing of the case, a formal power of attorney, vesting in the
procurador the power to settle and/or consent to the claim, and/or to waive rights of his
principal. Foreign litigants should remember that powers of attorney in court in Spain are
formal. They must be either granted before the court secretary or before a notary in Spain. If
granted abroad it must be notarized and apostilled (or legalized, if granted in a country which is
not a Signatory to the 5 October 1961 Hague Convention on the apostille). Powers of Attorney
for litigation commonly conform to a set draft that any Spanish lawyer will be able to provide to
his client for granting before a Public Notary.
Spanish lawyers who have been admitted to practice in the bar of the judicial district where the
court sits have the right of audience before the Court. However, under the new professional
rules, they may appear before the courts of any other district on a case-by-case basis once they
have given notice to the bar of the district of destination. It is therefore common for lawyers of
a given town or city to appear before the courts of other cities or judicial districts.
Pleadings need not be sworn; only signed by the lawyers representing each party. There are no
taxes or duties of any kind levied on pleadings. The court will not charge duties for its work. The
court system is financed by the Exchequer. However, the procuradores must pay duties to their
professional bar which are added in their bill to clients. Lawyers also pay contributions to their
bar but, under the rules of the bar of many provinces, these are not compulsory.
As to advocacy style, pleadings of Spanish counsel (i.e., the statement of case, the defense and,
in some cases, the counterclaim and defense of the latter) tend to be lengthy expositions of
facts and all the grounds of law on which the plaintiff or counterclaimant relies. The case is
pleaded in full from the very outset, thus limiting space for strategies on how to present the
case. This is
(a) because of the importance given by Spanish law and Spanish jurists to good faith and fair
dealing in contract law;
(b) because statements of claim (or defense) in civil litigation cannot be amended, thus
requiring litigants to plead the case in writing and in full, both in fact and in law;
(c) because plaintiffs and defendants must present all the relevant documents on which they
rely in their claim or defense with the opening written pleading (they cannot introduce these
documents later, although they will be allowed to file complementary or ancillary documents at
a later stage); and
(d) because Spanish judges have the authority to (and indeed will) allow a claim based on the
pleaded facts but under a different cause of redress than that pleaded by the plaintiff.
Spanish lawyers are reluctant to leave submissions of fact or legal arguments for a later stage of
the proceedings. This practice means that the costs of litigation are-paid upfront, in contrast to
other jurisdictions.
2.3. Capacity
All individuals and legal entities have the capacity to file suits and be named as defendants.
Estates, heritages and entities without legal personality can also bring suits through their
members acting on their behalf and in their interest. Similarly, the said members can also be
named as defendants if the claims arise from them being members or partners m the said
entities, estates or heritages.
2.4. Beginning Proceedings
The action in an ordinary track procedure is commenced with the demanda (statement of claim
or complaint) being filed in court. As mentioned above, this first written pleading will contain a
complete narrative of the facts on which the plaintiff relies, the legal grounds relied on by the
litigant and the relief sought. The documents on which the plaintiff bases his claim must be
attached to the statement of claim. Plaintiffs will be prevented from introducing them at a later
stage of the proceedings. Courts tend to be inflexible on this point on grounds of due process.
Expert reports must also be filed with the statement of claim.
The new procedure rules clarify that the date when the statement of claim is recorded at the
court registry determines the moment when proceedings become pending.
Once the complaint is filed with the court registry, the plaintiff may still amend his pleadings to
add facts or legal grounds, provided that the response to the complaint has not yet been filed
by the defendant. The plaintiff has this limited time to add new facts, legal grounds or further
relief. Once the respondent has filed the response to the complaint, with very restrictive
exceptions (see last paragraph of Section 2.5 below), the plaintiff cannot amend his case or
modify his pleadings. He will be allowed to clarify obscure points of his pleadings, and may be
allowed to make ancillary extensions in the course of the preliminary hearing, but not to modify
the pleadings. This restriction, together with the fact that Spanish civil proceedings do not have
a disclosure or discovery stage, makes preparation and filing of the complaint one of the basic
steps of the civil proceedings. In fact, this written submission will be the basis of the claim(s)
and will determine the object and scope of the proceedings. Therefore, before filing a
complaint, a considerable amount of time should be put into the research of evidence, the
evaluation of available evidence, the possible discovery of new evidence by means of notices to
the respondent, the particularization of the claims to be filed, and the relief to be sought. As a
result, as mentioned earlier, costs for clients are paid upfront in Spanish litigation.
The complaint must contain:
(i) a complete identification of the claimant, his representative in court (i.e., the procurador)
and counsel;
(ii) the defendant against whom the action is directed;
(iii) a complete, clear, and accurate narrative of the factual background, with clear and accurate
mention and reference to all documents attached to the complaint,
(iv) the legal grounds of the claim, including, not only those relating to the merits, but also
those referring to the rights of action, the capacity of the parties, jurisdiction and venue of the
judge of first instance, and the civil procedure track to be followed; and
(v) the relief sought.
The complaint must also enclose all documents (in hard copy support or other supports) and
the expert report or reports from the claimant. The complaint must enclose all documents
available to claimant at this stage. Introduction of new documents m a further stage of the
proceedings will be barred unless the claimant shows that
(i) they are new documents (i.e. created after the complaint is filed) or relate to new facts (i.e.
facts dating after the complaint was filed); or
(ii) the documents, or the facts to which the documents relate, have come to the attention of
the claimant only after the complaint was filed; or
(hi) their relevance and importance to the case have only become apparent to the claimant in
the light of the narrative and arguments raised in the respondent's defense; or
(iv) in case of documents existing at the time of the claim, when the claimant could not obtain
them for reasons beyond his will or control.
The judge of first resort will check the complaint to order its admission and the commencement
of the proceedings. Non-admission of the complaint by the judge-is exceptional and can only
occur on the basis of one of the causes set out in the LEC, all of them referring to formal and
procedural requirements (representation requirements, jurisdiction and venue, etc.). The judge
will however grant a short delay to supplement and/or rectify.
The judge will then issue an interlocutory order of admission of the claim that will also contain a
summons to the respondent to appear in the proceedings and directing him to file the defense
within 20 days from the date when he was served with the summons and the copy of the
statement of claim and attached documents. Service of the summons and the copies of the
statement of claim is done through the court, not by the plaintiff or the plaintiff's agent. The
court will serve the originating process and documents either by post, by telegraph, or by hand,
or by any other reliable means. If respondent is domiciled abroad, service will take place in
accordance with either the Convention on the Service Abroad of judicial and extrajudicial
Documents in Civil or Commercial Matters of 1965 or Regulation (EU) no. 1348/2000 of 29 May
2001, if either of them applies, or through consular channels if neither of these are applicable.
2.5. Responding to Proceedings
Within the time limits fixed by the court, the defendant must reply to the complaint through a
written pleading known as the contestación a la demanda (the defense or defense to the
claim). Under the new LEC, the only motion that the defendant can apply to delay the time limit
to file the defense is a motion to challenge the jurisdiction of the court or the venue, seeking to
have the case transferred to the appropriate court.
In its response, the defendant may either
(i) accept the claim in whole or in part; or
(ii) challenge the claim, filing a written defense in which the respondent must expressly accept
or deny the facts laid out by the claimant and oppose all procedural and substantive arguments
to the claims, and/or
(iii) assert a counterclaim, in which case his pleading must fulfil the same requirements as
characterized in Section 2.4 with regard to the complaint.
In this last case, the claimant will be granted 20 days from receipt of the counterclaim to file a
response to it.
It is quite common that the response to a complaint takes the form of a narrative-factual
background in a similar form to the narrative of the complaint, but expressing the respondent's
view. Such a narrative will usually be preceded by a general non-acceptance statement of the
facts contained in the complaint and will be followed by the legal grounds supporting the
respondent's defense. Like the complaint, the response must enclose all documents and the
expert report or reports from the respondent, new documents being admitted later only under
the circumstances referred to under 2.4, above.
Once the complaint and the response (and, where appropriate, the counterclaim and its
response) have been filed, the LEU expressly prohibits any change on the object of the
proceedings (i.e. the claim), and therefore, any amendments on the complaint. However, it is
allowed that, in the course of the pre-trial hearing, the parties may complete and/or clarify the
complaint and the response without altering the substance of their respective positions and
grounds expressed in their initial written submissions. In practice, courts will decide on the
admission of complementary or ancillary claims or pretensions under the umbrella of
preservation of the right of defense of the respondent.
3. Jurisdiction and Venue
3.1. Courts
The Spanish judicial system distinguishes five different jurisdictions: civil, criminal,
administrative, labor and military. Jurisdiction of the civil judges and courts extends to all
proceedings between Spanish nationals, between foreigners, and between Spanish nationals
and foreigners, on matters listed in the LOPJ, subject to and in accordance with the rules set out
in the LOPJ and the international conventions and treaties in force in Spain.
According to the Spanish Constitution, international conventions and treaties to which Spain is
party prevail over national enactments. Similarly, EU law will prevail over domestic law.
Therefore, the international jurisdiction of the Spanish civil courts is determined by the 1968
Brussels Convention on the international jurisdiction and enforcement of judicial decisions in
civil land commercial matters, as amended (this Convention continues to be relevant with
respect to Denmark), the 1988 Lugano Convention on the same subject, and Regulation (EU)
no. 44/2001, of 22 December 2000, on judicial competence and the recognition and
enforcement of judicial decisions in civil and commercial matters. Furthermore, with respect to
some specific subject matters, Spain is a party to multilateral conventions that contain
provisions on the international jurisdiction of Spanish courts (e.g., the CMR Convention, the
1954 Brussels Convention on arrest of vessels). The provisions of these Conventions will prevail
over Spanish domestic law. The limited scope of this chapter makes it impossible for us to
explain the contents of the Conventions. We will refer the reader to standard treatises
published on the subject.
When no international treaty or convention is applicable-jurisdiction of the Spanish courts will
be determined under the domestic rules of international jurisdiction of Spanish courts
established in the LOPJ. Although the rules contained in tins statute deserve lengthy exposition
(which is beyond the purpose of this chapter), it is worth noting here that: (i) in tort actions,
Spanish courts are competent if the act or omission which caused the damage occurred in Spam
or if both the person who caused the damage and the defendant have their habitual residence
in Spain; and (ii) in actions arising from contract, Spanish courts are competent if the obligation
was contracted in Spain (lex loci contractus) or if the obligation must be performed in Spain. As
pointed out earlier, civil procedure in Spain is based on a double-resort system.
In the first resort, civil cases are tried before the Juzgados de Primera Instancia, which are
one-judge courts. When (according to the venue rules referred to in Section 3.2 below)
territorial competence corresponds to a particular judicial district, then the judges of first
instance of that judicial district will give a judgment on the case. A team of civil servants
assuming clerk functions assists the judge. There is no specialization among the first instance
civil judges, and therefore judges can be assigned cases of very different substantive matters
(contract, maritime, banking, insurance, corporate, IT, real estate, etc.). Only the matters
relating to family law are-presently assigned to specialized judges. However, the Spanish
Government has recently approved its proposal for the reform of the LOPJ that includes
specialization of the judges of first instance in some commercial law cases.
At the appeal level there exist the Audiencias Provinciates, one for each provincia. These second
resort courts will decide on appeal against final judgments and certain orders given by the first
instance judges of the provincia in which the court of appeal exercises its jurisdiction. The
courts of appeal are composed of three judges. Decisions are taken by majority. Each Audiencia
Provincial is divided into different "sections", some (though not all) specializing in different
areas of the law. Magistrates are also assisted by civil servants.
3.2. General Principles of Jurisdiction and Venue
Once jurisdiction of the Spanish civil judges and courts has been determined, the rules under
the LEC will determine competence of a particular court within the Spanish territory. The
general principle is that the competent judge of first resort is the one sitting in the judicial
district where the defendant has his/her domicile or its registered office. There are other
particular rules depending on the concrete right of action (e.g. if the right of action refers to
real estate, then "in rem venue" will apply, i.e. competence will be granted to the judge of first
resort sitting in the judicial district where the property is).
Agreements specifying the choice of the parties of a particular jurisdiction and venue are valid
and enforceable, unless they refer to particular matters for which the LEC has expressly
attributed exclusive competence to the judges of first resort of a particular judicial district (e.g.,
the judge of first resort sitting in the judicial district within which a company has its registered
offices is the one before which, according to the law, a challenge of the shareholders' and
board of directors' decisions will have-to be filed).
"Implicit choice" can be the basis of jurisdiction. This occurs when a respondent appears for the
first time before the judge of first resort with which a complaint has been filed and takes any
step in the proceedings other than challenging jurisdiction or venue.
The doctrine of lis alibi provides that civil proceedings will be suspended when another
proceeding before a different court (of the same or another jurisdiction) is running in parallel,
with its result influencing and conditioning the result of the civil proceeding suspended.
However, the civil courts will still have the authority to rule on issues that, for their subject
matter, belong to other jurisdictions (e.g. labor, administrative), the effects of the civil court
decision being strictly restricted to the purpose of solving the civil dispute submitted by the
parties. Nevertheless, the parties—and also the law, in specific cases—may require the civil
court to order suspension of the civil proceeding until a final decision in the other jurisdiction is
achieved.
It should he noted that comity or reciprocity are not principles of Spanish civil litigation. Lack of
reciprocity shall only be considered as grounds to refuse recognition and enforcement of
foreign judgments (if the country of origin of the judgment is not a member state of the 1968
Brussels convention, the 1988 Lugano Convention or the EU Regulation no. 44/2001 on
jurisdiction and enforcement of judgments in civil and commercial matters).
Finally. Spanish law does not recognize the forum non conveniens doctrine nor any similar
theory whereby a Spanish court, which is competent according to international jurisdiction
rules, suspends proceedings or declines its authority to continue proceedings in favor of some
other more convenient forum. When jurisdiction of Spanish courts is founded, the judge is
under a duty to give judgment. He has no discretion to do otherwise.
4. Motions and Other Applications and Submissions
4.1. Non-Conclusory Motions
Once the lawsuit has been filed, the grounds on which an application can be made to the court
seeking a non-conclusory resolution is a numerus clausus, apart from which no motion is
allowed. The more important applications are the motion to seek a stay until a closely related
claim judged by a criminal court is decided and the motion to seek a stay for negotiation, which
can be granted for a maximum of 60 days.
4.2. Conclusory Motions
The parties can file submissions for a conclusory decision, which, if successful, would put an end
to the claim without examination of the merits of the case.
The lack of legal basis for the claim is not a valid argument for an application for dismissal. Only
at the end of the procedure does the judge take the merits of the case into account.
Lack of jurisdiction is one of the grounds for a motion to dismiss which can be filed along with
the defense. It can be based either in an arbitration agreement (in this case, a ten-day term is
granted to file the motion) or in the prevalent jurisdiction of a national or foreign court (in this
case, the motion must be stated in the defense's writ). Additionally, it must be borne in mind
that the jurisdiction must be checked by the court at the receipt of the claim, so that the Court
can dismiss the lawsuit tor lack of jurisdiction without having been requested to do so.
Res judicata and lack of procedural capacity are other grounds for a motion of dismissal of the
action, which must be opposed in the defense's brief.
Finally, the court will put an end to the claim when the claimant withdraws the lawsuit or at the
request of both parties in the case of an out-of-court settlement.
5. Pre-Trial Practice
5.1. Administrative Rulings Including Scheduling Orders
Within 3 days following the filing of the response to the complaint with the judge (or following
the filing of the response to the counterclaim), the judge of first resort will issue an order fixing
a date, within the following 20 days, to hold the pre-trial hearing. Under the new LEC, the
pre-trial practice is concentrated in the pre-trial hearing (see details on pre-trial hearing in
Section 6).
However, if the claimant has included in its written complaint a specific application for
interlocutory injunctions, this application will be dealt with prior to the pre-trial hearing (see
details on injunction proceedings in Section 7.1).
5.2. Gathering Evidence
The general principle governing the taking of evidence under the LEC is that each party hears
the burden of producing and contributing to the proceedings all the evidence supporting its
respective case. Therefore, the claimant will have to prove the facts on which its claims rely,
and the respondent will have to prove the facts asserted in its defense.
Only disputed facts need to be proved. Agreed facts and facts which are notorious or that are of
general knowledge do not need to be proved. Foreign law needs to be proved.
The LEC expressly regulates (as means of evidence) documentary evidence, witness evidence,
expert evidence, judicial visits in situ of places, goods and individuals, and any means of
reproduction of words, images and sounds, as well as systems allowing to record, treat and
reproduce words, data, numbers and arithmetic operations. Other means of evidence not
expressly regulated will be allowed if required by one party.
All means of evidence intended to be used by the parties will have to be announced at the
pre-trial hearing. Evidence is generally carried out and examined during the trial, although
under certain circumstances particular evidence will be examined before trial (e.g. the judicial
visit in situ). There is a specific proceeding set out in the LEC to preserve evidence.
The Spanish legal system is not familiar with and does not allow a disclosure and/ or discovery
phase. As discussed, all available documents on which a party wishes to rely to support its case
must be enclosed with the complaint and the response to the complaint. Each party is
responsible for gathering such documents. However, one party can ask the other to disclose
and show before the court a particular document or the original of a particular document,
provided that it is related to the object of the proceedings or to the efficiency of the means of
evidence. If the required party does not disclose the document, then the judge can decide
either to consider that the particular document has the content that the requiring party has
specified in its request, or to issue an order to the party not disclosing the document to disclose
it. The court can also order disclosure of a certain document by a third party provided that the
requiring party shows that it is fundamental to the decision of the case.
6. Hearings and Trials
The pre-trial hearing has two main purposes:
• To facilitate and procure the settlement of the dispute, and to such purpose the procurador
as representative of the party must appear at this hearing with specific powers to settle. The
parties have at this stage the possibility of advising the court that they have reached a
settlement or that they intend to reach a settlement. Thus, the parties may ask the judge at the
pre-trial hearing to homologate (validate) their settlement agreement or to advise the judge
that they both waive the proceedings.
• Should settlement not be achieved, the purpose of the pre-trial hearing will then be to clarifyand simplify the proceedings. To this end. the following issues will be dealt with in the pre-trial
hearing:
• Any procedural objection to the continuation of the proceedings that would prevent the court
from entering judgment is dealt with and decided at this stage (i.e. lis alibi pendens, lack of
power of attorney or lack of capacity to appear in court of the plaintiff, res judicata objections,
misjoinder of parties, wrong procedural track).
• Issue determination: the parties are invited to agree on undisputed facts, and thus, leave only
those that are disputed for the evidence period; and
• The parties shall propose the evidence they intend to rely on during the trial. Each party will
submit to the judge its respective proposed evidence to be carried out and examined in the
course of the trial, and the judge will decide on its admission or non-admission based on the
relevance criteria.
Under the civil procedure rules at the end of the pre-trial hearing, and in case the parties have
not settled the claims, the judge will agree with the parties on a date for the trial hearing. In
cases where evidence needs to be examined before the trial, the judge will also agree with the
parties the dates and schedule to carry out such examination.
The trial hearing also has two purposes: the examination of evidence, and the closing oral
submissions of each party.
6.1. Evidentiary Issues
Photocopies of documents can he enclosed, and the original will have to be provided only if the
other party challenges the authenticity of the photocopy. At the request of one party, experts
can examine handwriting and signatures to check their authenticity.
With respect to witnesses, each party has the right to call the other party for examination at
the trial, and each party has the right to bring and/or call witnesses to the court. Each party's
witnesses can include their employees or related third parties, as well as any other third party,
including the other party's employees, individuals or companies in some way related to the
other party. The list of witnesses for each party is submitted at the pre-trial hearing. Generally,
it is each party's responsibility to advise its witnesses that they are to appear before the court
on the date of the trial. However, parties can ask the judge to call witnesses. Witnesses have a
duty to appear at the trial.
Parties and witnesses are examined directly at the trial hearing. The other party can object to
questions put to the parties and the witnesses, and/or the judge can reject the questions if they
are not relevant to the case. Witnesses are examined and cross-examined without the
assistance of written statements, but the court may allow them to consult notes or documents
if appropriate. The party that calls the witnesses will examine the witnesses first, and then they
will be cross-examined by the other party.
The judge may also address the witnesses and ask questions to clarify the issues on which the
particular witness has given evidence. Witnesses can confront other witnesses and parties by
means of face-to-face interrogatories, with two or more witnesses comparing answers.
Although hearings are public, witnesses other than the representatives of each party are not
allowed to attend the hearing while other witnesses are giving evidence.
Regarding expert evidence, under the old LEC, it was only valued as impartial evidence if the
expert was appointed by the judge. Under the new LEC, expert evidence is m the hands of the
parties and it is for each party to appoint its expert or experts and contribute the expert reports
to the proceedings. Each party's expert evidence can be challenged by the other party by
means of contradictory expert evidence, and each party's expert witnesses can be examined
during the trial and questioned by the judge. Expert reports have to be attached to the
complaint and the response to the complaint. However, if the expert's report cannot be
finalized when filing the complaint or the response, parties must then advise in their written
submissions that the expert's report will be brought into the proceedings at a later stage, but
no later than the date of the pre-trial hearing. The expert's report can be brought into the
proceedings at a later stage only when needed for the respondent's defense, or for
complementary claims added by the claimant at the pre-trial hearing, but m any case, before
the trial hearing.
The new LEC also contemplates the possibility that experts may be appointed by the judge if
one party so requires. Such requirement must be contained in the complaint or in the response.
In some cases, parties may also require the judge to visit in situ a place, object or individual,
indicating the issues to be observed, as well as having an expert attend such a visit to explain
any technical issues. This type of evidence commonly takes place before the trial hearing. Both
parties will attend the judicial visit and, if required, the relevant witnesses will also attend and
can be examined and cross-examined.
Once the evidentiary phase of the trial has ended, the claimant, and then the respondent, will
give their respective oral closing submissions. These submissions should include the facts that
have been accepted by the parties, the facts that were controversial but have been proved
during the evidentiary phase, and the facts that may remain uncertain, concluding with the
factual assertions and the legal grounds applicable to such facts in support of their respective
cases.
The judge has express authority to ask the parties to clarify any questions he considers were
not sufficiently illustrated by the conclusions and reports from both parties.
6.2. Default Judgment
Default judgments as known in common-law jurisdictions do not exist in Spanish litigation.
Except in exceptional cases, the fact that the defendant does not appear in court to challenge
the claim does not discharge the plaintiff from having to argue the case in full and present the
evidence to support its case. Default judgments are not entered by the courts automatically
because the defendant did not appear to contest the claim.
When the respondent fails to appear before the judge and file its response to a complaint, the
proceedings will continue and result in a favorable judgment depending on the merits and the
evidence, just as in court cases where the respondent appeared to contest the claim.
As an exception to this, if the plaintiff chooses the track known as proceso monitorio (i.e. a
judicial file to request payment of some commercial debts) and the respondent does not
contest the debt, the court will enter judgment forthwith. Similarly, if the claim is to collect
money due in bills of exchange or checks, and the plaintiff uses the juicio cambiario, which is a
special proceeding for these type of documents, the court will enter judgment forthwith should
the respondent not appear in court to challenge the claim.
6.3. Final Judgments and Orders
The judgment is the final decision of the judge or court that ends the proceedings at that
particular resort. The judgment will be final and binding when no appeal can be brought against
it, either because the deadline to appeal has elapsed and none of the parties has filed an
appeal, or because no appeal is possible.
Judgments must include the particulars of the parties and their representatives in the
proceedings, and are divided into three different sections: (i) the factual background (including
the facts relevant to the dispute, the claims and defense of each party, the evidence executed
and the facts that have been proved), (ii) the legal grounds (including all issues of fact and law
determined by the parties as well as the controversial questions and the reasoned opinion of
the judge leading to the final decision), (iii) the final decision resulting from (ii).
6.4. Consent Judgment
The Spanish judicial system does not contemplate consent judgments. Nevertheless, it does
contemplate the parties' right to settle the dispute at any time during the proceedings. The
parties may (i) apply to the judge tor judicial validation of their settlement agreement, in which
case the agreement will be enforceable as if it were a final judgment or (ii) file an agreed waiver
of proceedings, m which case the judge will issue an order of termination and filing of the
proceedings by agreement of the parties.
7. Special Proceedings
7.1. Injunctions
The general rule for interim measures is that they are issued to preserve the status quo of the
rights or goods claimed by the claimant during the proceedings. Interim measures are
requested by the parties. Judges will not issue them motu propio, except for particular
situations when special protection may be required (for example, in family law).
The LEC sets out a list of available interim measures, although it is not an exhaustive list. It is
possible to apply for other measures not expressly regulated or listed under the LEC, if they
appear to be more adequate.
Interim measures have to maintain proportionality with the referred purpose. The general rule
is that they cannot not amount to an advanced final judgment on the merits. Interim measures
are ancillary to the main proceedings; therefore, they will have to be applied for when the main
proceedings are commenced (the application must be contained in the complaint). If the
application for interim measures is filed before the complaint, then the mam complaint will
have to he filed with the competent tribunal (whether a court—Spanish or in a foreign
jurisdiction—or an arbitral institution) within 20 days from the date when the provisional
measures are granted.
Under Spanish law, the general requirements for interim measures to be granted are:
• There must be a clear risk that delay inherent to the proceedings will endanger the practical
enforceability of the final decision rendered by the court (periculum in mora)
• The plaintiff must show a strong prima facie case (fumus bonis iuris);
• Proportionality; and
• The claimant must offer "a caution" or guarantee with its application, to cover any possible
damages caused by the injunctive measure to be issued. The caution amount will be set by the
judge, taking into account the hypothetical damage that may result from the interlocutory
injunction.
Interim measures must be requested in a written brief containing the grounds on which the
application is made and justifying the existence and fulfilment of the requirements set forth
above. The application is filed with the court of first instance holding competence with regard
to the injunction. The general rule regarding venue for interim measures is that venue
corresponds to the judge of first instance who is competent to hear the main proceedings. If
the main claim is being brought before an arbitral tribunal or a foreign court, or is to be brought
before an arbitral tribunal or a foreign court, then the venue is the judge of first instance sitting
in the judicial district in which the measure will have to be enforced and have effect.
The proceeding before the judge is short (it should not last more than 20 days, although it could
last much longer if the respondent is not domiciled in Spain and has to be served and
summoned to appear at the hearing). The general rule is that, when the application is filed, the
judge will call the parties to a hearing in which the parties will state their respective grounds for
and against the interim measure application. The LEC contemplates the possibility of granting
ex parte interim relief, without serving a notice on the defendant to attend a hearing where the
interim measure will be decided. The courts will only grant interim protection ex parte to the
extent that the measure is urgent, or the notice given to the defendant would jeopardize the
practical and effective result of the measure sought. Applications are-dealt with ex parte only
exceptionally. In any case, if interim protection is granted ex parte, the defendant may
challenge it within 21 days counted from the date when the defendant had notice of the
measure.
Interim measures are effective from the date they are issued and will be maintained until the
date of the final judgment. The LEC sets out a specific regime to modify this type of measure if
there is a change in circumstances during the proceedings that requires such modification.
Finally, the party affected by the interim measure may offer a monetary caution or security as a
substitution for the interim measure granted or petitioned for.
7.2. Remedies against Assets
One of the interim measures listed m the LEU is provisional seizure or attachment of assets
belonging to the respondent. Generally, provisional seizure or attachment of assets will be
granted only in claims relating to payment of monies, profits or fungibles convertible to money.
The requirements characterized in Section 7.1 above will have to be fulfilled (that is, periculum
in mora, fumus bonis juris, proportionality and security).
Another of the interim measures listed under the LEC is the judicial administration of assets.
This measure can be applied for when the asset or assets to be judicially administrated are the
subject of the claim, or if the relief sought by the claimant is only possible if a particular asset is
properly managed to ensure its profitability while proceedings are pending. For example, the
judicial administration of a company would be sought in cases where
(l) the relief sought by the claimant is the possession and title of the shares, or (ii) the relief
sought by the claimant is restricted to monies to be paid by the company, and the claimant
argues that the most adequate way to ensure such payment is to ensure the good
administration and management of the company's business.
Here, also, the requirements characterized in Section 7.1 above must be fulfilled.
7.3. Other Special Proceedings
7.3.1. The LEC allows third parties with a legitimate interest to appear in court to support the
claim or the defense filed respectively by the plaintiff or the respondent.
The appearance of a third party will not suspend the proceedings, nor will it retroact them. The
third-party intervener will have the right to adhere to the pleadings of the claimant or the
respondent, as the case may be, or make his own submissions and file the evidence to support
the plaintiff's or the defendant's ease.
Third parties may also be driven into an ongoing proceeding as a result of a motion from the
claimant or the respondent in the cases expressly foreseen by the laws. The LEC limits the
compulsory joinder of third parties to cases specifically listed in the statute. There is no general
right to enjoin third parties.
7.3.2. Outside the LEC, the Spanish Civil Code allows a debtor, who has knowledge that two or
more parties are claiming they are entitled to receive the amount due from the debtor, to be
fully liberated from its obligation to pay the amount due, by means of a judicial deposit. The
amount will remain under the authority of the judge until a final judgment sets out which of the
various creditors is entitled to receive it.
7.3.3. The new LEC expressly regulates the right of action of consumers, and users' associations
and organizations incorporated to represent and act on behalf of classes of persons in a similar
situation. The terms under which class actions can be exercised, and the legitimacy of the
associations and organizations, depend on the nature of the rights protected in the
proceedings: (i) When the damages claimed affect an individual right of one or more
consumers, then the right of action is granted to both the affected consumers) and the
association or organization representing the interests of the affected consumers, (ii) When the
damages claimed affect a general right of the consumers, then the right of action is granted
exclusively to the associations or organizations legally representing the consumers. The new
LEC has introduced an express regime for class actions and it raises several issues regarding its
interpretation and execution which, due to space limitation, are not possible to assess here.
7.3.4. The LEC does not contemplate "shareholders derivative claims," meaning claims filed by
the shareholders of a company to enforce the rights belonging to the company. However, the
Spanish Acts on company law do contemplate this action for a particular case. The Spanish Acts
on Public Limited Companies and Limited Companies contemplate the company's right to claim
liability of the managers resulting from illegal and/or negligent acts of management. Generally,
it is for the company, by means of a shareholders' decision, to exercise the right of action and
file a complaint. However, if a decision cannot be achieved by the shareholders meeting, the
shareholders are granted the right to file the complaint. It is understood that any relief
obtained in such proceedings will benefit the company (and not the shareholders).
7.3.5. Under the LEC, it is possible to seek and obtain, as a relief, the declaration of a certain
fact, or of a certain legal consequence resulting from a fact. The proceeding to obtain a
declaratory relief is not a special proceeding, but because of the nature of the declaratory relief
itself, there is no provisional enforcement of the final judgment that ends the proceedings in
the first resort, in case of appeal.
7.3.6. As mentioned in Section l, the new LEC contemplates a special proceeding for the
recovery of undisputed commercial debts not exceeding € 30,000. This proceeding commences
by filing an application with the judges of first resort, in which the claimant claims the existence
of a commercial credit against the respondent, enclosing the documents to support its claim
(usually the invoice). The judge will then serve on the respondent a notice to pay the amount
claimed. Should the respondent not contest the claim, the judge will immediately order the
enforcement of the debt on the respondent's assets until payment of the debt is obtained.
Only when the respondent expressly challenges the claim will proceedings continue in
accordance with the general track mentioned earlier in this chapter (if the claim exceeds
€3,000), or under the so-called "verbal proceedings" referred to in Section 1 (for claims not
exceeding €3,000).
8. Post-Trial Proceedings, Applications and Appeals 8.1. Application to Alter or Modify
Outcome
The LEC allows motions to correct material errors, or to clarify obscure points or unresolved
issues in the final judgments. The parties have two days after the judgment has been served in
which to apply for such modification, unless the modification refers to an outstanding material
error or an arithmetic error (in which case there is no time limit for motions to rectify). It is
important to note that the motion to modify interrupts the five-day period allowed for filing the
ordinary appeals (sec Section 8.2).
Furthermore, the LEC also allows, at the request of one party or on the initiative of the judge,
the final judgment to be corrected to fix omissions or defects that jeopardize its enforcement or
its complete effect. The parties are granted a five-day period from notice of the judgment to file
a motion for this purpose.
8.2. Appeals
The courts of second resort, called Audiencias Provinciates, deal with the appeal of judgments
given by judges of the first resort. Once the judgment in the first resort is notified to the parties,
they have a five-day period in which to announce, before the first resort judge, their intention
to appeal the judgment, prior to formally filing the appeal. This prior announcement system
allows the parties to acknowledge, within a short period, whether or not the first resort
judgment will be final and binding.
Once the appeal has been announced, the appellant will be summoned by the judge of first
resort to formalize the appeal within 20 days by filing with the judge of first resort a written
submission containing the full grounds of the appeal. The other party will be served with a copy
of the appeal's written submission and may then oppose the appeal and/or decide to appeal
the first resort judgment, in both cases by means of a written submission to be filed within 10
days. If the other party also decides to file an appeal, the first appellant will, in turn, be granted
a 10-day period to file its answer.
The court of second resort will then receive from the judge of first resort the complete file of
the proceedings and the written submissions, and it will decide on the appeal. However, a
hearing may take place if further evidence has been proposed by one or both parties and it is
admitted by the second resort court (the LEC provides for a limited number of cases where
further evidence can be proposed by the parties and admitted by the court). A hearing may also
take place it the court considers it to be convenient motu propio or at the request of one or
both parties. In the hearing, counsel for both parties will orally present and argue their
respective cases and, if evidence has been admitted, it will be examined before the court.
It is worth noting that, even when a first resort judgment is appealed, the new LEC provides for
provisional enforcement of the judgment.
The decisions of the Audiencia Provincial end the ordinary civil procedure. Only one of the two
extraordinary appeals specifically set out in the LEC allow the parties to challenge judgments at
the second resort.
First, an extraordinary appeal to the Supreme Court (recurso de casación) can only be filed on
the grounds of breach of material law (as opposed to breach of procedural law) in the cases
expressly listed under the LEC, which are:
• Cases referring to fundamental rights.
• Cases involving amounts exceeding € 15(1,000.
• Regardless of the object or the amount involved, if the appeal is in the interest of a review
because there is contradictory case law in the second resort, or because the issue refers to a
recent law on which there is no case law, or because the case has been resolved in the second
resort, changing existing case law.
The competence for such appeals is granted to the Civil Section of the Spanish Supreme Court
(Tribunal Supremo) or, under certain circumstances, to the Superior Court of justice of the
Autonomous Community.
Secondly, the extraordinary appeal tor breach of procedural law (recurso por infraccion
procesal) can only be filed on the grounds of breach of procedural rules expressly listed under
the LEC, which are:
• Breach of the rules on jurisdiction and/or venue.
• Breach of the rules on judgments.
• Breach of the rules on guaranties of proceedings resulting in the nullity of a certain act or
breach of the right to defense.
• Breach of fundamental rights.
The competence to resolve such appeals belongs to the Superior Court of justice of the
Autonomous Community in which the court of second resort sits, although it is currently
granted on a temporary basis to the Supreme Court.
There is a third extraordinary appeal called "appeal on the interest of the law". Its purpose is to
maintain a unified case law with respect to judgments from the various Autonomous
Communities, resulting from extraordinary appeals for breach of procedural law. Competence
to resolve such appeals is granted to the Supreme Court. Such appeals, and the judgments
resulting from them, will not have any effect on the juridical status of the parties involved, as
their sole purpose is the unity of the ease law. Only the Public Prosecutor, the Ombudsman,
and other public entities have the capacity to file such appeals.
9. Recovery of Litigation Expenses
The basic rule is that all costs of the proceedings (including counsel fees) will shift to the party
whose suppositions have been totally rejected. The courts model this general rule on criteria
such as the good or bad faith of the parties during the course of the proceedings, or on the fact
that the respondent has accepted the claims totally or partially. In practice, this rule will
influence the strategy and behavior of the parties in the course of the proceedings, and
particularly will influence the strategy of the claimant when assessing and deciding its claims
and the relief to be sought.
10. Enforcement of Foreign Awards, Judgments, and Orders
We will refer here only to the enforcement of foreign judgments under domestic rules. The
principles established in Spanish law apply only to the extent that none of the so-called
European instruments [i.e. the EU Regulation no. 44/20(11, the 1968 Brussels Convention (as
amended) and the 1988 Lugano Convention, all of which regulate the judicial competence and
the enforcement of foreign judgments in civil and commercial matters] are applicable. These
international and European Community enactments supersede Spanish domestic law in this
field of the law.
Spanish law allows refusal to enforce foreign judgments on any one of the following grounds
provided by Article 954 of the LEC:
• That the judicial decision is not final and binding in the country of origin, that is to say, that it
is subject to an appeal.
• Only judgments that contain relief for actions in personam may obtain enforcement.
• The language of Article 954, letter c) of the LEC bars recognition to judgments given in
default. However, abundant jurisprudence of the Supreme Court of the last two decades made
it clear that this principle is now interpreted to mean that recognition will only be refused if the
defendant did not have notice of originating process in time to prepare his defense.
• The obligation upon which the claim was based must not be illegal from the standpoint of a
Spanish judge.
• The foreign judgment must meet the requirements of form so that it may be considered
authentic in Spain. A certificate of the court of origin with an apostille is enough to meet this
requirement.
In addition, a Spanish court will refuse to enforce a foreign judgment if it has been rendered by
a court with a manifest lack of international judicial competence. The Spanish Supreme court
will accept that the rules of international jurisdiction of the country of origin are reasonable if
they mirror Spanish rules on the subject or if there is a reasonable connection between the
action and the foreign court. Judgments given by courts plainly unrelated to the action or the
contract will not obtain recognition.
Whenever enforcement is sought outside the European instruments mentioned above, the
petitioner must first obtain leave to enforce (exequatur) m the Spanish Supreme Court.
Proceedings to obtain leave are simple: they begin with a written request to which the
petitioner must append the foreign judgment (duly apostilled or legalized), documents to show
service or originating process if the judgment was given in default, and any other evidence to
show the nature of the claim. The Supreme Court will serve a notice that leave is sought on the
defendant and request the public prosecutor to report on the merits of success of the petition.
The court will subsequently enter judgment (called "auto" in Spanish law of procedure) granting or refusing leave. There is no possible appeal against this decision.
After leave (exequatur) has been obtained, the foreign judgment will be considered in all
respects as if it were a Spanish judgment, and ordinary enforcement proceedings before the
competent court of first instance (normally the court where the defendant is domiciled) can he
commenced.
11. Pitfalls—Special Considerations
Foreign lawyers should be aware that in Spanish litigation the case must be pleaded in full from
the first written brief. There is no chance to amend pleadings, and documents (except ancillary
documents) on which the party will rely must be filed in court with the opening written
submission. Documents should be original and must be translated into Spanish by a chartered
or sworn translator in Spain. Foreign official or notarized documents should have the apostille
of the 1965 Hague Convention affixed.
Litigants should not plan their strategy by considering that wide discovery of documents in
possession of the other party is possible. They must rely on information and documents which
are in their possession or reach.
Finally, litigants should be aware that, as a result of the above, court cases take considerable
time to prepare and costs are paid upfront. Given that pleadings can rarely be amended and
documents will only be accepted if enclosed with the opening brief, court cases take some time
to prepare.
12. Arbitration
12.1. Recognition of Arbitration Agreements
Spain recognizes the binding nature of arbitration agreements under Article II of the 1958 New
York Convention on the enforcement of arbitration awards. Spanish domestic rules which
establish formal requirements of arbitration agreements are superseded by Article II of the
New York Convention. Spanish judges will give a narrow interpretation of what is understood to
be an "agreement in writing", in cases where the arbitration clause is contained in standard
terms of contract or by reference to other contractual documents not signed by the parties,
especially in cases where the parties had different bargaining power. Disputes are not
arbitrable m Spanish law
(i) if the parties cannot dispose of contract on the subject matter of the dispute or contract;
(ii) if a final and binding judgment (or arbitration award) with res judicata effect has been given
on the same subject matter of the dispute, except if the arbitration is about the enforcement of
the judgment (or award):
(iii) if the dispute is inextricably linked to issues about which the parties cannot freely dispose of
contract; and
(iv) if the public prosecutor must be a party to the proceedings according to Spanish procedural
rules to act m the interest of minors or disabled people (e.g. capacity, status of individuals,
family law).
Civil liability arising from crime is arbitrable. Franchising agreements and noncommercial
contracts are arbitrable. Employment law arbitrations are excluded from commercial
arbitration and follow their own labor arbitration scheme; and therefore, employment law
disputes are not arbitrable outside these specific schemes.
12.2. Recognition of Arbitration Awards
The recognition of arbitration awards is sought in Spain under the 1958 New York Convention
on the enforcement of arbitration awards. Spam has not used the reservation allowed by
Article 1(3) of the 1958 New York Convention. Hence, any award given in any country may
obtain enforcement in Spain if it meets the requirements of the New York Convention. If Spain
has entered a bilateral convention with other countries, enforcement may alternatively be
sought under the provisions of the bilateral convention. A discussion of enforcement under
these instruments is beyond the scope of this chapter.
There are no grounds in Spanish domestic law to refuse recognition of a foreign award. As with
foreign judgments, the petitioner must first obtain leave to enforce (recognition or exequatur)
before the Supreme Court, after which it may apply for enforcement following Spanish general
rules on the enforcement of judgments.
The new LEC specifically permits Spanish courts to assist foreign arbitration proceedings by
granting interim protection in Spam.
12.3. Challenges to Arbitration
Arbitration awards given in Spam are not subject to appeal before the civil courts. The only way
to challenge the final and binding nature of the arbitration is to file an action with the court of
appeals of the district where the award was given to have the award annulled (recurso de
anulación del laudo). There is a deadline of 10 days from the date when the award was served
on the petitioner to file a written action of annulment.
The grounds to annul an award provided in the Spanish law are contained in Article 45 of the
1988 Spanish Arbitration Act. This provision mirrors Article 34 of the UNCITRAL Model Law with
the following notable exception: an award rendered in Spain may be annulled if the time limit
given to the arbitrators to give the award is exceeded. This time limit is fixed by the parties in
either the arbitration agreement or in subsequent correspondence, by giving time extensions to
the arbitrators during the arbitration proceedings, exchange of letters or agreements. If there
has been no agreement, the time limit given to the arbitrators to give their award is 6 months,
except in matters of lease contracts, where the time limit is 3 months.
13. Mediation
Although in some areas mediation has been extensively used in the past (for instance, in family
law), Spain is not a country where mediation is a widespread practice to solve disputes.
Furthermore, an agreement to mediate will not be enforced by the Courts. There are no
Supreme Court judgments to this effect, but lower courts—judges of first instance and courts of
appeal—have refused to stay proceedings and refer the parties to mediation. The courts will
not enforce an agreement to mediate and will not suspend proceedings on grounds of breach
of the covenant to mediate. The only procedural objection available in Spanish law is
arbitration.