Cross-Border Judgments
A judgment does notend at the border.
A judgment may have been obtained in France, the United Kingdom, Morocco, the United States or any other State. But if the person bound by it lives in Spain, holds assets here or receives income here, a different question arises: how can that decision be given effect in Spain?
The reverse can also happen. A Spanish decision may need to be recognised and enforced in another country.
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Recognition · Enforcement
Winning the caseis one thing.Making it effectiveis another.
Recognition and enforcement are not the same.
One of the first distinctions to be drawn is between:
Recognition
Establishing whether a foreign decision can produce legal effects in Spain.
Enforcement
Establishing how to give effect to its content where there is an obligation that must be performed.
The difference is essential. A person may hold a favourable judgment and yet find that the real problem begins when it has to be enforced in another State.
The origin
The country of origin matters.
Not all foreign judgments follow the same regime. The analysis may change substantially depending on:
- which country issued the decision
- when it was issued
- what subject matter it deals with
- whether EU legislation applies
- whether there is an international convention
- whether a specific regime exists between the two States
- or whether the relevant domestic rules must be relied on
The same judgment can follow a very different legal route depending on where it comes from.
The subject matter
The subject matter matters too.
Enforcing a maintenance obligation is not the same as enforcing a decision on:
- custody
- parental responsibility
- divorce
- matrimonial property regime
- a debt
- a contractual obligation
- a money judgment
- or rights over particular assets
Each subject matter may have its own rules on recognition and enforcement. There is no single procedure for every foreign judgment.
The scenario
When the other parentlives in Spain.
A particularly common scenario:
A foreign decision establishes a maintenance obligation. The parent liable to pay moves to Spain. The payments stop. Their income is in Spain. Or their assets are in Spain.
The question is no longer simply: “Am I entitled to be paid?”
It becomes: how do I enforce an obligation recognised in another State against a person who is now in Spain?
Specific international mechanisms may come into play here, depending on the countries involved and the nature of the obligation.
The reverse
And the same problemexists in reverse.
A Spanish judgment may establish a maintenance obligation. The debtor moves to another country. Works there. Holds accounts there. Or acquires assets there.
The question then becomes: How does a Spanish judgment cross the border?
And once again it will be necessary to establish:
- which country is involved
- which legal instrument applies
- which procedure is appropriate
- which authority must be involved
- how the decision is recognised
- and how it is actually enforced
The recovery
A paper awardis not recovery.
A judgment may award:
- a sum of money
- maintenance arrears
- damages
- costs
- a contractual obligation
- or another enforceable obligation
But between recognition of the right and actual recovery there may be significant practical and legal questions:
- where the assets are
- where the debtor works
- what accounts they hold
- what income they receive
- what enforcement measures the relevant jurisdiction allows
The real question is where the obligation can be made effective.
The assets
Assets changethe strategy.
Where assets are held internationally, the analysis may take on an additional dimension. The debtor may have:
- a home in Spain
- a company
- bank accounts
- participaciones (shareholdings)
- professional income
- investments
- or assets located in several jurisdictions
The existence and location of these assets can be decisive in determining where and how to seek enforcement of a decision.
Several practice areas may come together here:
and, where relevant, Tax.
The timing
Timing can be decisive.
Recognition and enforcement may also be conditioned by:
- time limits
- finality (firmeza) of the decision, where it is required
- service on the parties
- pending proceedings
- provisional, including protective, measures
- prescripción or caducidad (limitation, which a claim can interrupt, and a strict lapse period, which cannot), where applicable
- and other procedural requirements
That is why holding a judgment does not mean it can be left unexamined indefinitely. The longer the distance, the more important the legal route.
What cango wrong?
A foreign decision may encounter obstacles relating to:
jurisdiction of the court of origin
rights of defence
service
finality, for decisions from non-EU States
compatibility with other decisions
public policy
formal requirements
translation and documentation
the existence of applicable conventions
or issues specific to the subject matter of the judgment
The judgment may be valid. The question is whether, and how, it can operate here.
The frameworks
European & internationalframeworks.
Where European Union Member States are involved, different EU Regulations may apply depending on the subject matter. Outside the European Union, international conventions or the domestic rules of the relevant State may come into play.
That is why there is no single answer to: “I have a judgment from another country. Can I enforce it in Spain?”
The answer depends on the judgment, the country of origin, the subject matter, the date and the specific connections of the case.
The cross-border question.
Where is the decision?
The State that issued the decision.
Where is the person?
The State where the debtor is.
Where are the assets?
The State where there may be assets against which to enforce.
Where does the law take you?
The legal framework that connects all of those elements.
The Garzalex view
One judgment. Several jurisdictions.
A foreign decision may need to pass through several legal layers before it becomes effective in practice. Recognition. Enforcement. Recovery. That is where cross-border legal strategy matters.
The judgment may come from abroad. The solution may need to be built here.
When a court decision crosses borders, it is not enough to know the procedure of the country that issued it. It is necessary to understand how the State of origin, the State where it must take effect, the subject matter of the decision, and the assets or the person against which it must be enforced all interact.
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