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The evidence of foreign law: The Spanish Supreme Court’s Judgment of 24 June 2010

We live in a globalized world where people, goods and money can move freely between national borders. It is perfectly possibly to buy a computer manufactured in Tokyo from a sales company established in Bangladesh, while sitting outdoors on a terrace in Rome. In this context, with transnational commerce and business relations constantly expanding, it is logical that international litigation is becoming increasingly commonplace. 

Nevertheless, international litigation has several specific issues which do not arise in domestic litigation. For example: under what jurisdiction should a particular case fall and what is the applicable law for the dispute? These are usually key questions. Fortunately, there are international legal materials that can be used to answer them, such as Regulations 44/2001 (Brussels I) and 593/2008 (Rome I) of the European Union. However, new problems may also arise, for which we have no international rules, and national law is to be applied. This is what happens when a case falls under a particular jurisdiction, but must be solved by applying the laws of another country. Consequently, if a party argues that a case should be decided according to the law of a different jurisdiction, then the burden of proof is on the alleging party to prove not only that the foreign law is applicable, but also the foreign substantive law itself (as a fact), for which there is no international legislative tool.

As for Spain, both the Civil Code and the Spanish Procedural Law expressly set forth the obligation to “prove” the foreign law to be applied by Spanish Courts (Articles 12(6) and 281(2) respectively), but neither of them establishes a well-defined criteria or a specific procedure. It is precisely in these circumstances that the recent Spanish Supreme Court Judgment of 24 June 2010 [JUR 2010, 264354] will be an important guide when arguing that foreign law must be applied by Spanish Courts, since it summarises the main issues regarding the evidence of foreign law that have been brought before the Spanish Courts.

The Judgment states that the need to prove foreign law has always been part of the Spanish legal tradition, and must therefore be treated in the same way as any other fact that is asserted in a civil procedure and thus is subject to the general rules regarding evidence.

However, the Supreme Court immediately clarifies the previous statement by asserting that foreign law cannot be treated solely as a fact, since foreign law refers to the group of rules applied by a particular society in order to solve a specific conflict. Therefore, the party arguing for the application of a certain foreign law must evidence not only the existence of a specific rule, expressed by particular wording (provided that there is such a thing), but more importantly, its interpretation, extent and applicability to the specific case, given that the Spanish Court must apply the foreign law to solve the case as if it were Spanish Law. This last point is especially important when arguing for the applicability of laws from a country with a common law system.

Additionally, the Supreme Court stresses the importance of the above requirement because of the possibility that an extraordinary appeal on the grounds of breach of law can be filed before the Spanish Supreme Court, even if the applicable law is not Spanish.

Moving on to the next issue, the Judgment summarizes three different ways to evidence foreign law which have been accepted by Spanish Courts. Note that Article 281(2) of the Spanish Procedural Law merely states that “the Court shall use any available means that it deems necessary”). Those three possibilities are the following: 

(i) Foreign public documents, or other documents certified by a foreign civil servant with the power to accredit documents (such as a Notary Public), which will essentially serve to evidence the specific wording of a given law;

(ii) A sworn testimony (affidavit) by at least two lawyers from the country corresponding to the foreign law being put forward; and

(iii) The Court’s own knowledge and experience where required. This criterion can complement other pieces of evidence of foreign law, but can not fully substitute it. Therefore, the party putting forward arguments under foreign law will not be exempt from evidencing it, even if the Court is aware of the law or rule at hand.

Lastly, the Supreme Court points out that Spanish Procedural Law does not generally require a specific amount of evidence to be produced within the proceedings, and this is also the case when proving foreign law. It is up to the First Instance and Appeal Courts to evaluate the evidence brought before them and to decide whether the foreign law or rule has been proved or not.

Therefore, if a case must be solved before Spanish Courts applying foreign law, it must be, argued and proved by the parties notwithstanding the possibility that the Court can additionally apply its own knowledge. In the same way that Spanish law could potentially be misapplied by the Spanish Courts, so could be foreign law too when issuing the judgment, which would then subsequently be subject to an extraordinary appeal on the grounds of breach of law. Finally, Spanish Law does not state how a foreign law or rule must be evidenced, but there are several ways that have been tested and accepted by Spanish Courts as listed above.


Author:  Félix J. Montero, partner at PEREZ-LLORCA.

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