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Litigation

Last verified on Thursday 29th June 2017

Spain

Carlos de los Santos, Francisco M Serrano and Elisa Vicente Maravall

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
    1. Apart from justices of the peace, who only deal with disputes below €90, civil and commercial claims are generally brought to courts of first instance. However, certain disputes may be brought to specialised commercial courts.

      Decisions rendered by both, courts of first instance and commercial courts, are subject to appeal before the court of appeals. There is a court of appeals in every Spanish province.

      Under certain circumstances, the decisions issued by the courts of appeals may be subject to a further appeal before the Civil Chamber of the Supreme Court. However, if the appeal were based on the infringement of regional civil law, it would be heard by the Civil Chamber of the regional High Court of Justice.

      An appeal before the constitutional court is only possible where constitutional rights (such as due process) have been infringed.

  2. 2.The legal profession
    Describe the general organisation of the legal profession.
    1. Until a couple of years ago, the only requirements to be admitted as a lawyer in Spain were to hold a Spanish law degree (or an equivalent foreign degree officially approved) and to be a member of a local bar association, which would entitle a lawyer to practise anywhere in Spain.

      New legislation was enacted in line with other European jurisdictions, according to which prospective lawyers – apart from holding a law degree – will need to hold a Master's degree, which will be followed by a period of apprenticeship and passing a written national exam.

  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
    1. Spain is a civil law jurisdiction, wherein the most relevant legislation was codified, as in other European civil law jurisdictions, during the 19th century. Regarding substantive law, the most important piece of legislation is the Civil Code, enacted in 1889, which has been repeatedly amended since then.

      The Civil Procedure Act 1/2000, of 7 January 2000, which repealed the previous Procedure Act of 1881, contains the civil procedure rules. The latest amendment to the said Act was made by means of Law 42/2015, of 5 October 2015, containing several changes to the civil procedure, most notably, the obligation for lawyers and court representatives, court bodies and public prosecutors to use remote or electronic media to file submissions and documents and to perform procedural communications as from 1 January  2016. The amendment also reinforces the role of court representatives. Furthermore, specific changes have been introduced to the trial stage, particularly a written answer to the claim in verbal proceedings; the possibility for courts motu propio to examine unfair terms in agreements concluded with consumers in applications for payment procedures' orders and for enforcement of arbitral awards; and the amendment of the general limitation period for personal actions for which no particular time bar has been specified, which will be five years.

      Spanish civil litigation has been traditionally adversarial and the parties are regarded as “the owner of the proceedings”. However, the Civil Procedure Act of 2000 introduced greater judicial control.

      Civil courts in Spain have been traditionally overloaded and, although ordinary civil proceedings should be quite straightforward, a decision resolving a dispute will not be rendered promptly. This situation worsened due to the economic difficulties that Spain has been going through in recent years, which in particular increased the number of eviction and insolvency proceedings before courts of first instance and commercial courts, respectively.

      In order to try to improve this situation several measures were adopted by the government such as promoting a greater use of arbitration and ADR mechanisms as an alternative to litigation (significantly, in July 2012 the first Spanish Mediation Act was enacted) or establishing higher fees (taxes) for certain judicial services (a measure that has been strongly criticised and that has been annulled in part by the Spanish Constitutional Court in its Judgment 140/2016, dated 21 July 2016). 

      On 30 July 2015, Law 29/2015 on international legal cooperation in civil matters was enacted, which serves as a general framework, on a subsidiary basis to European Law and International Treaties, as well as to specific sectorial legislation. This law is a landmark step in the Spanish procedural framework since, among other effects, it derogates the ancient regime for the enforcement of foreign resolutions in Spain, introducing a more modern regime.

    Jurisdiction

  4. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
    1. Courts of first instance have general jurisdiction over all civil or commercial disputes not expressly assigned to other courts by legal provision. Where the dispute relates to certain specific commercial matters, such as unfair competition, intellectual property, maritime and transport law, competition law, corporate matters or insolvency, specialised commercial courts will hear the case.

      As a general rule, if there is no a choice of venue, the venue is determined by the residence of the defendant. If the defendant is a corporate entity, the venue could also be where the legal relationship to which the dispute refers has originated or must take effect, provided that the company has an establishment or a representative authorised to act in the name of the company in said place.

      Rules establishing territorial jurisdiction are not mandatory, so parties may agree to submit their disputes to a specific venue. However, there are some exclusive forums from which the parties cannot derogate: for instance, cases where actions in rem related to real property are brought will be heard by the court of the district where the property is located.

  5. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
    1. Spain is not considered as a jurisdiction that attracts disputes that have a nexus with other jurisdictions.

  6. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
    1. Where a court finds that a dispute between the same parties, same subject matter and same cause of action is pending before another Spanish court, it will issue an order rejecting the case.

      If a dispute with the same subject matter and between the same parties were pending in another EU member state, the Spanish court must stay its proceeding until the foreign court rules over its jurisdiction (unless there is a choice of forum agreement in favour of Spanish courts, as we will see later). If the foreign court determines it has jurisdiction to hear the dispute, the Spanish court must decline its jurisdiction in favour of the foreign court.

      As regards international lis pendens, it must be noted that Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which reforms Brussels I Regulation (EC 44/2001), applicable since 10 January 2015, contains new rules on lis pendens within the European Union as well as regarding third states (non-EU).

      For instance, when two courts of different EU member states are seised, pursuant to the aforementioned Regulation – and instead of the “first in time” rule that previously applied – if the parties agree to submit their disputes to the Spanish courts, a Spanish court is free to decide on its jurisdiction, regardless of whether or not it was first seised. If the Spanish court finds it has jurisdiction in accordance with the agreement, any other member state court must decline jurisdiction in favour of the Spanish court.

      In addition, and for the first time, the Regulation has introduced rules on international lis pendens. Pursuant to said rules, a Spanish court may stay the proceedings where a court of a third state has already been seised of an action involving the same parties and the same cause of action and (i) the judgment of the third state could be recognised in Spain and (ii) the Spanish court is satisfied that the stay is necessary for the proper administration of justice.

      Law 29/2015, of 30 July 2015, on international legal cooperation in civil matters, also contains provisions regulating international lis pendens. However, because of its subsidiary nature, this law only applies to matters not covered by the Brussels I Regulation (personal law, family law, succession an insolvency law).

  7. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

    1. If a dispute that is, or could be, subject to arbitration is brought to a court, the defendant may challenge the court’s jurisdiction filing a motion to reject the case due to lack of jurisdiction, which shall be filed with said court within 10 days after service of the claim. Unless the arbitration agreement is null or void, or the subject matter of the dispute cannot be settled by arbitration, the court will decline jurisdiction to try the case.

      However, national courts will always entertain a request for interim measures submitted before or during the arbitral proceedings. Requests for interim measures addressed to a national court are not deemed incompatible with an agreement to arbitrate.

  8. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
    1. Spain recognises the “competence-competence” principle and arbitration tribunals may render partial awards ruling on their own jurisdiction. The parties may challenge such awards on very limited grounds (ie, the existence or inexistence of the arbitration agreement, the arbitrability of the dispute, or public policy).

      Spanish courts may only review the decision of an arbitral tribunal on its own jurisdiction within the context of a request for set aside or a request for recognition and enforcement of an award deciding on the jurisdiction of the tribunal.

  9. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
    1. There is no specific regulation concerning anti-suit injunctions in Spain.

  10. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

    1. Spain recently enacted Organic Law 16/2015, of 27 October 2015, on Privileges and Immunities of Foreign States. This Law draws on the threads of numerous international conventions on sovereign immunity, as well as on customary international law on the matter.

      Organic Law 16/2015 sets out a very detailed regime regarding the privileges and immunities conferred on foreign States and their property and assets (including any subdivision or state entity exercising elements of governmental authority), heads of state or government, warships and other State-owned ships and airships, foreign armed forces, international organisations and participants in international conferences.

      Organic Law 16/2015 borrows the canonical distinction between immunity to jurisdiction and immunity from execution. In general terms, immunity to jurisdiction may be waived either explicitly or implicitly, but the Law sets out a finite list of cases in which any such waiver can be performed. In turn, waivers of immunity from execution are only enforceable against a state if the waiver is included in an international agreement, a contract in writing, a statement made before the tribunal dealing with the claim against the state, or where the foreign state has attached specific assets to satisfy a specific claim.

    Procedure

  11. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
    1. Proceedings commence with the claimant filing its statement of claim with the court registry of the competent court of first instance (or, if applicable, the competent commercial court). The court shall sua sponte assess certain procedural issues, such as international and personal jurisdiction, legal standing, etc, and whether the statement of claim fulfils all the legal requirements. If it does, a notice of claim together with the statement of claim will be served upon the defendant. The defendant will be required to file its statement of defence within 20 working days from the date of service (in which the defendant can – and indeed must – also file a counterclaim if it has a claim against the claimant related to the dispute).

      Once the statement of claim and statement of defence (or, as the case may be, the counterclaim and defence to the counterclaim) have been filed, the parties are summoned by the court to a preliminary hearing, whose main purposes are: (i) to determine whether a settlement is possible; (ii) to put forward oral arguments on procedural issues (res iudicata, lis pendens, parties joinder, etc); (iii) to complete, clarify or rectify points of fact or law; and (iv) for the parties to propose the evidence they intend to rely upon at the trial.

      At the preliminary hearing a date is set by the court for the trial, after which the court will pass its decision on the merits.

  12. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
    1. The statement of claim must: (i) include sufficient information to identify the claimant, the defendant and the domicile where the statement should be served; (ii) establish the facts (in an orderly and clear manner) and the legal grounds (both procedural and substantive) on which the claim is based; and (iii) clearly express the remedies sought.

      The statement of claim shall be filed together with all the documents and expert witness evidence on which the claimant wishes to rely.

  13. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
    1. The statement of defence shall be drafted in the same manner as the statement of claim. In it the defendant shall deny or admit the facts put forward by the claimant, as the court may infer silence or evasive responses as a tacit admission of such facts. The defendant shall also raise in its statement of defence the procedural exceptions or allegations that would impede hearing the case.

      Along with the statement of defence the defendant shall also include all documentary and expert witness evidence he wishes to rely on. Regarding the latter, and because of the limited time to file the answer to the claim, if it is not possible for the defendant to file an expert report together with its answer, the defendant must supply it as soon as possible, and no later than five days before the preliminary hearing.

  14. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
    1. Once the statement of claim is filed, the claimant may amend its pleadings before the statement of defence is filed, the claimant may broaden its pleadings before the statement of defence is filed to include new claims or to include new defendants. In this case, the period to answer the claim will restart. 

      In addition, during the preliminary hearing the parties are allowed to develop further, clarify or rectify points of fact or law, as long as the submissions made in the claim and the remedies sought are not substantially changed.

  15. 15.Publicity
    To what degree are civil proceedings made public?
    1. As a general rule, non-parties that show to the court a legitimate interest in the proceedings will be informed on the status of said proceedings by the court. In addition, non-parties with a legitimate interest can obtain copies of the written statements and documents related to the proceedings. However, under special circumstances (public order, national security, where publicity might damage the interest of justice, etc), the court may declare the proceedings confidential – wholly or partially.

      Oral hearings are generally open to public. Nonetheless, the court may decide (under the same circumstances set forth above) to hold a hearing, or part of it, privately.

    Pretrial settlement and ADR

  16. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
    1. Spanish courts do not render interim assessments on points of fact or of law.

      After the statement of defence has been filed, a preliminary hearing will take place in which, among other issues, the court will ask the parties whether a settlement is possible. If no agreement can be reached, the proceedings will continue, as the parties cannot be obliged to negotiate.

  17. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
    1. Since the enactment of the new Mediation Act in 2012, in the notice whereby the parties are summoned by the court to the preliminary hearing, the court shall inform them that mediation is available as a means to settle the parties’ differences. Considering the subject matter of the dispute, the courts may propose the parties to attend an informative session on mediation.

      During the preliminary hearing itself, or at any stage of the proceedings, the parties may ask the court to stay the proceedings to submit their differences to mediation.

    Interim relief

  18. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
    1. The parties may request protective measures at any time during the proceedings, and even before the statement of claim has been filed (ante demandam measures). The purpose of the measures should be solely to protect the effectiveness of the judgment.

      As a general rule, the court will hear the defendant before making a decision on the requested measures. However, if the claimant proves special urgency or risk, the court may order said measures ex parte, hearing the other party after the measures have been ordered.

      The Civil Procedural Act envisages a list of specific protective measures (such as deposits, attachments and seizures, etc), but they are not numerus clausus, hence, the courts may also order other protective measures deemed necessary to ensure the effectiveness of the judgment.

  19. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
    1. In order to grant a protective measure, a court should be satisfied by the petitioner that:

      • the measure is effective to protect the relief sought;
      • a prima facie case is presented (fumus boni iuris); and
      • if the measure is not granted, the effectiveness of the judgment is at serious risk (periculum in mora).

      In addition to the above, the petitioner shall offer security to cover potential damages if the claim is dismissed or the protective measure is reversed.

    Decisions

  20. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
    1. Decisions rendered by the court’s clerk are called diligencias or decretos. They deal mainly with procedural issues. The court may also issue interlocutory decisions on procedural matters, which are called providencias.

      The two main types of decisions rendered by the courts are: autos and sentencias. By way of autos, courts normally decide on issues without entering into the merits of the dispute (eg, protective measures), whereas by way of sentencias courts decide on the merits of the dispute, thereby terminating the proceedings.

      Sentencias can be declaratory, where the court declares the existence of a right, fact or a conduct, and/or condemnatory, where the courts order the defendant to do something, to refrain from doing something or to pay an amount of money.

  21. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
    1. Under Spanish law, motions to dismiss and summary judgments are not available. As a rule, at the end of the preliminary hearing, where the parties propose the evidence they wish to rely on, the court will set a date for the trial. At the trial the court will receive the evidence previously admitted and then the parties’ counsels will take the floor to submit their oral closing submissions. The judgment on the merits will be rendered afterwards.

      There are only few exceptions to the above procedure. For instance, if during the preliminary hearing the court is satisfied that the facts are undisputable and the parties’ differences are purely legal, then there is no need for a trial and the judgment will be rendered after the preliminary hearing. Similarly, if documents already filed with the statement of claim and statement of defence are the only evidence proposed by the parties, the court will render the judgment after the preliminary hearing.

  22. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
    1. A default judgment will be rendered in proceedings where a defendant who has been duly summoned fails to appear before the court. A defendant declared in default may request, in very limited cases, that the default judgment be quashed (basically, in cases of force majeure or in some specific situations of lack of knowledge of the proceedings).

  23. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
    1. Courts of first instance are overloaded and normally take well over a year to render a final decision on the merits of the dispute. The complexity of the dispute will normally have an influence on the duration of the proceedings.

    Parties

  24. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
    1. Third parties can become part of the proceedings in two different ways: (i) if they prove a direct and legitimate interest in the result of the proceedings; and (ii) if one of the parties considers necessary to call a third party to the proceedings and the court accepts it.

      Regarding the first situation (intervención voluntaria), the third party’s request to intervene will not stay the proceedings. The court will decide after hearing the party. If the court decides to grant the request, the proceedings will continue, but the third party is allowed to submit allegations that were to be introduced at an earlier procedural stage. The other parties will be given five days to make submissions on the third party’s submissions.

      Regarding the second situation (intervención provocada), there are two scenarios: (i) the claimant requests a third party to be part of the proceedings, but without being considered a defendant; (ii) the defendant requests a third party to be called to the proceedings.

      In the first scenario, the claimant must make such request (when it is allowed by the law), in the statement of claim. If accepted by the court, the third party will have the same rights as the parties to the proceedings.

      In the second scenario, the defendant has to request the third-party intervention (when allowed by the law), during the term to file the statement of defence (20 working days). The court will then stay the proceedings to hear the claimant. The time given to the defendant to reply to the statement of claim will resume once the request is dismissed or, if accepted, once the defendant is served with the statement of defence of the third party. In any case, the term for the defendant to file the statement of defence will resume once the time given to the third party to answer the claim has expired.

    Evidence

  25. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
    1. Civil proceedings are adversarial, so it is the duty of the parties to supply and propose the evidence they wish to rely on. However, in some situations the law allows the court to do it.

  26. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
    1. Under Spanish law, there is no such thing as the “discovery” of common law systems. Nevertheless, there are preliminary proceedings whereby, in very limited cases, a party intending to file a claim may request a court to order a potential defendant to produce documents that are required to prepare the statement of claim.

      If the proceedings have already commenced, only in certain situations can one party request the counterparty to disclose documents, provided that they are specifically identified, or the request is sufficiently narrow.

  27. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

    1. Each party is allowed to propose as many witnesses of fact as it deems necessary, but the court has the discretion to call only those it considers relevant for the case.

      The witnesses of fact are examined and cross-examined by the parties’ counsels during the trial. The court may also put questions to the witnesses. Only in very limited situations are witnesses allowed to give their testimony at their domicile or before a court in the district of the witnesses’ domicile.

      If there are contradictory testimonies, the court may order the confrontation of the contradictory witnesses (the careo).

      Witness preparation is not expressly prohibited by law or by the main sets of rules on professional conduct.

  28. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
    1. When scientific, technical or specific knowledge is required to explain the facts of the case, the parties may file an expert witness report or require the court to appoint an expert witness, in order to give his or her opinion about the facts.

      The expert report must be filed with the parties’ initial statements, with some exceptions. Regarding the claimant, the expert report can only be filed after the statement of claim when, in order to protect its rights, the claimant justifies the need to file the statement of claim beforehand, or when the need for such report arises in light of the defendant’s defence. Regarding the defendant, it must justify in its statement of defence that it was not possible to obtain the expert report during the 20-day term granted to file the statement of defence.

      Additionally, expert witnesses are generally allowed to orally explain their report at the trial, unless the court finds it unnecessary or useless. Parties’ counsel and the courts may ask questions to the expert witnesses.

  29. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
    1. Each party may request the examination of the counterparty (or its director, if a corporate entity). Regarding facts in which the party (or its director) has been personally involved, and when those facts are harmful to it, the court may consider those facts to be true – unless there is a legal secrecy duty – when the party asked to declare on them: (i) does not appear before the court; (ii) does not answer the questions; or (iii) is evasive on answering the questions of the counterparty.

  30. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
    1. Traditionally, foreign law has been regarded as a question of fact, and its content and validity must be proved by the alleging party. However, the court may use any means of verification for its application.

      Article 33.3 of Law 29/2015, of 30 July 2015, on international legal cooperation in civil matters expressly provides that the failure by a party to prove the content, validity and applicability of the foreign law will not entail an outright rejection of the claim; rather, Spanish law will govern the merits of the claim in lieu of any foreign law that would be otherwise applicable.

      Foreign-language documentation must be filed with a translation into Spanish (or other official language). Should the translation be challenged by the counterparties, the court’s secretary will order a sworn translation.

  31. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
    1. Spanish law requires a very high standard of proof. Thus courts hold that although there is no need for absolute certainty, causation must be proved with reasonable certainty.

    Appeals

  32. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
    1. Decisions rendered by the courts of first instance (or commercial courts) are subject to appeal before the courts of appeals, except judgments issued in verbal trials (tried in consideration of the amount) for amounts below €3,000. Once the decision of first instance is served to the parties, they have a 20-day period to file an appeal, having the possibility to present evidence only in few limited cases. Once the appeal has been filed, the other party will be given 10 days to answer it.

      Additionally, there are two extraordinary appeals before the Supreme Court based on error of law, procedural or substantive.

  33. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?

    1. Based on the facts and legal grounds set forth before the court of first instance, courts of appeals may review the merits of the case, both questions of fact and of law. However, some recent decisions rendered by courts of appeals have established that the interpretation of a contract made by courts of first instance shall not be reviewed unless the court of appeal finds that such interpretation is illogical, absurd, arbitrary or against the law.

  34. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
    1. Decisions by the courts of appeal can take approximately 18–24 months to be rendered.

    Special proceedings

  35. 35.Class actions
    Are class actions available?
    1. Spanish law foresees the acciones colectivas, which are not exactly class actions and are only available to consumers.

      If the affected group of consumers can be determined easily, the group itself, legally recognised consumers associations, or any other entity that seeks to protect consumers’ rights, are entitled to file a claim. If the affected group of consumers cannot be easily determined, only consumers associations are entitled to file the claim. At any rate, pursuant to the latest reform on the consumers’ and users’ regulation, the Public Prosecutor is entitled to file any claim in defence of the consumers’ and users’ interests.  

  36. 36.Derivative actions
    Are derivative actions available?
    1. A company’s general meeting may adopt, upon the request of any shareholder, the decision to file a liability claim against its directors.

      Additionally, shareholders representing at least 5 per cent of the company’s stake may request to hold a general meeting in order to decide whether to file or not a liability claim against the directors. Furthermore, they may also jointly bring the action for liability to protect the company’s interest when: (i) the directors do not call the general meeting requested for that purpose; (ii) the company does not bring the action within the term of one month after the date of adoption of the corresponding resolution; or (iii) the decision of the general meeting is to not bring the action for liability.

      Lastly, the Companies Act also allows the company’s creditors to bring an action against the directors when it has not been brought by the company or its members, whenever the company’s assets are insufficient to pay their claims

  37. 37.Fast-track proceedings
    Are fast-track proceedings available?
    1. There are two fast-track proceedings available, for limited types of disputes:

      Proceso monitorio: The creditor may file a petition for the payment of the debt (expired and payable) on its own (without the assistance of a lawyer or court’s agent). The court will then require the debtor to pay in the following 20 days or to oppose to the said petition. If the debtor does not pay the creditor or fails to appear in court, the court will conclude the proceedings and the creditor can commence enforcement proceedings. If the debtor opposes to the payment petition, the court will conclude the proceso monitorio, giving the creditor one month to start regular proceedings.

      Proceso cambiario: The creditor may file a petition for the payment of the debt when the debt is documented in a negotiable instrument. The court will examine the negotiable instrument and if it finds it fulfils the formal requirements, will grant the debtor a 10-day period to pay, ordering, at the same time, seizure of the debtor’s goods for the amount of the debt. If the debtor does not oppose the claim for payment, the tribunal will order the enforcement of the amounts claimed. The debtor may only oppose to the payment with the following exceptions: (i) the inexistence or invalidity of the instrument; (ii) the lack of capacity of the holder of the instrument or its formalities; and (iii) the extinction of the credit. If the debtor opposes the claim for payment, the claimant will have a 10-day period to oppose it. A hearing shall be held only if the court deems it necessary, or if it is requested by the parties. The court will then have 10 days to render its decision on the opposition to the payment filed by the debtor.

  38. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
    1. Proceedings must be held in Spanish or any other official language of the different regions. If a party or witness needs to be examined in a different language, an interpreter would be required.

    Effects of judgement and enforcement

  39. 39.Effects of a judgment
    What legal effects does a judgment have?
    1. Judgments have res judicata effect. A final judgment excludes subsequent proceedings where the subject matter is identical to the proceedings from which it arose. The res judicata affects the parties to the dispute, as well as their heirs and successors.

      A final judgment will bind the court in any subsequent proceedings where the parties are the same, or if the res judicata effect is extensive by law to the parties of the subsequent proceedings.

  40. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
    1. Enforcement proceedings commence with the filing of an application for an enforcement order with the court of first instance that heard the case. The court will examine the formal requirements of the judgment before issuing an enforcement order. The specific rules that would apply to the enforcement proceedings will depend on the relief granted in the judgment. The debtor can oppose the enforcement on very limited and exceptional circumstances.

      If the judgment which is enforced grants an amount of money, and the applicant identified assets of the debtor in its application, the court’s enforcement order will generally include the attachment of all or part of those assets. Otherwise, the court may order different means of investigation to trace assets of the debtor that might be attached.

      Under Spanish law some judgments that are not final can be provisionally enforced. Should they be revoked, the party that requested the provisional enforcement will have to compensate the other party for any damages the provisional enforcement might have caused.

  41. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
    1. Where a judgment is issued by a court of a non-member state of the European Union, Spanish law provides that the enforcement in Spain of such a judgment is subject to the appropriate order (exequatur), being this obtainable: (i) according to the provisions of any applicable treaty; and (ii) in the absence of any such treaty, Law 29/2015, of 30 July 2015, on international legal cooperation in civil matters will apply.

      According to the aforementioned Law, the following grounds for refusal of recognition, and future enforcement – if possible – are provided:

      • The judgment is contrary to public policy.
      • The judgment infringes the rights to defence of either party.
      • The judgment is on a matter over which the Spanish courts have exclusive jurisdiction or with respect to other matters if the jurisdiction of the judge in the country of origin does not satisfy the reasonable connection test.
      • The judgment is irreconcilable with a judgment rendered in Spain.
      • The judgment is irreconcilable with a judgment from another State where that judgment satisfies the conditions to be recognised in Spain.
      • An action is pending in Spain between the same parties and on the same subject-matter commenced before the foreign proceeding.

      In relation to judgments rendered by EU member states, pursuant to Regulation (EU) No. 1215/2012, applicable since 10 January 2015, a judgment given in a member state shall be recognised in another member state without any special procedure being required. Accordingly, judgments rendered in other member states are enforceable in Spain without any previous declaration of enforceability. 

    Costs

  42. 42.Costs
    Will the successful party’s costs be borne by the opponent?
    1. Under Spanish law, the general principle is that all the costs be borne by the losing party, unless the court considers and reasons that the case may pose serious de facto and/or de iure doubts in order to ground a different solution. If the claim is partially upheld or dismissed, each party should bear its own costs, unless one party has litigated recklessly, in which case the tribunal may decide that such party shall bear the costs of the other party.

  43. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
    1. In certain situations, a party may apply for free legal assistance. According to the Spanish Constitution and the Free Legal Assistance Act, a person that proves the lack of sufficient economic resources has the right to obtain free legal assistance to litigate. 

  44. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
    1. Although lawyer’s fees based solely on the outcome of the case are forbidden by Lawyers’ Statute (Royal Decree 658/2001), a Supreme Court ruling of 2008 declared such a prohibition contrary to competition law. Accordingly, lawyers are free to agree their fees on a contingency basis.

      In any case, pure contingency fees arrangements are not very common. More usual is to agree on a fixed fee plus a success fee.

  45. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
    1. There is no particular regulation regarding third-party funding in Spain.

  46. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?
    1. Lawyers can freely agree on their fees with their clients. Nevertheless, when a party is ordered to bear the other party’s costs of the proceedings, such costs will be generally quantified based on an orientative fee scale elaborated by the different bar associations, taking into consideration the type of proceedings and the amount in dispute. Therefore, lawyers are not required to follow the scales, but the costs of the proceedings payable by the losing party are generally fixed pursuant to those scales.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
  2. 2.The legal profession
    Describe the general organisation of the legal profession.
  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
  4. Jurisdiction

  5. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
  6. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
  7. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
  8. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?


  9. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
  10. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
  11. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?


  12. Procedure

  13. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
  14. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
  15. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
  16. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
  17. 15.Publicity
    To what degree are civil proceedings made public?
  18. Pretrial settlement and ADR

  19. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
  20. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
  21. Interim relief

  22. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
  23. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
  24. Decisions

  25. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
  26. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
  27. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
  28. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
  29. Parties

  30. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
  31. Evidence

  32. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
  33. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
  34. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?


  35. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
  36. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
  37. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
  38. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
  39. Appeals

  40. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
  41. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?


  42. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
  43. Special proceedings

  44. 35.Class actions
    Are class actions available?
  45. 36.Derivative actions
    Are derivative actions available?
  46. 37.Fast-track proceedings
    Are fast-track proceedings available?
  47. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
  48. Effects of judgement and enforcement

  49. 39.Effects of a judgment
    What legal effects does a judgment have?
  50. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
  51. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
  52. Costs

  53. 42.Costs
    Will the successful party’s costs be borne by the opponent?
  54. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
  55. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
  56. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
  57. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?