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Regulation (EU) No. 1215/2012, known as the Brussels I bis Regulation, aims to facilitate access to justice, in particular through provisions on jurisdiction and on the recognition and enforcement of judgments in civil and commercial matters rendered in the Member States. It is a Regulation that regulates two distinct areas: international jurisdiction on the one hand, and the recognition and enforcement of foreign judgments (exequatur) on the other. The rules of jurisdiction of the Regulation designate the courts of the Member State that may or must have jurisdiction to hear a given dispute. The Regulation applies to all EU Member States, including Denmark, following the conclusion in 2005 of the Agreement between the European Community and the Kingdom of Denmark on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. However, Switzerland and other European countries do not fall within the scope of the Regulation as they are not members of the European Union.

Therefore, the Lugano Convention was adopted on October 30, 2007, whose objective was to regulate the same areas of the Brussels I bis Regulation, but between the countries of the European Union (EU) and Switzerland, Norway and Iceland. Known as the new Lugano Convention, it replaced the 1988 Lugano Convention. Like the Brussels I bis Regulation, this Convention applies to jurisdiction, recognition and enforcement of judgments in civil and commercial matters between the countries named above.

It is necessary to know that the 2007 Lugano Convention does not apply to the following matters:

  • Tax, customs and administrative matters
  • Status and legal capacity of natural persons
  • Property rights arising out of matrimonial property regimes
  • Wills and succession
  • Bankruptcy or creditors’ agreements
  • Social security or arbitration

Title II of the Convention on Jurisdiction provides that as a general rule, persons domiciled (legal residents) in a State bound by the Convention are subject, whatever their nationality, to the courts of that State (“general forum of the defendant’s domicile“) (Article 2). Article 3 provides that persons domiciled in a State bound by this Convention may be sued in the courts of another State bound by this Convention only under the rules set out below. The general provisions of Article 60 of the Lugano Convention determine that for the purposes of the Convention, a company or other legal person shall be deemed to be domiciled at the place where either its statutory seat, its central administration or its principal place of business is located. Therefore, for a company having its statutory seat in a country adhered to the Convention, it must be sued in that country, unless some of the special or exclusive rules of jurisdiction contemplated in the Convention are met.

Special rules of jurisdiction (“special subject-matter forums“) are provided for in the Convention in certain respects in Article 5. The special subject-matter forums are forums concurrent with the general forum of the defendant’s domicile, so that if these forums provide for the jurisdiction of the courts of a State other than that in which the defendant is domiciled, the plaintiff may, in principle, bring its action either in the courts of the State of the defendant’s domicile or in the courts of the State designated by the forum in question. These are as follows:

  • In matters of contract, the courts of the place where the obligation in question has been or is to be performed shall have jurisdiction.
  • In matters of maintenance, the courts of the place of the domicile or habitual residence of the maintenance creditor (the person who must make the payments established by the court decision) shall have jurisdiction.
  • In matters of tort (an illegal act or an infringement of a right causing damage or injury), delict (an illegal act for which the injured person is entitled to civil redress) or quasi-delict (a negligence or omission causing damage or injury to the person or property of another and thereby exposing a person to civil liability in civil law jurisdictions), the courts of the place where the harmful event has occurred or may occur shall have jurisdiction.
  • In the case of disputes relating to the operation of branches, agencies or any other establishment, before the court in which they are located.
  • In his capacity as founder, trustee or beneficiary of a trust created either by operation of law or by an oral agreement confirmed in writing or by an oral agreement confirmed in writing, in the courts of the State bound by this Convention in whose territory the trust is domiciled.

In addition, in relation to jurisdiction over insurance contracts, this is regulated in Articles 8 to 14 of the Convention (Section III).  Jurisdiction over consumer contracts is regulated in Articles 15 to 18 of the Convention (Section IV).

There are also exclusive jurisdictions (“exclusive forums“), which, due to the importance that the legislator wanted to give them, are listed in Article 22, and for which they have exclusive jurisdiction, regardless of domicile:

  • In matters relating to rights in rem in immovable property and leases of immovable property, the courts of the State bound by this Convention where the immovable property is situated.
  • In matters relating to the validity, nullity or dissolution of companies and legal persons, as well as to decisions of their organs, the courts of the State bound by this Convention where the company or legal person is domiciled
  • In matters relating to the validity of entries in public registers, the courts of the State bound by this Convention in which the register is kept
  • In matters relating to the registration or validity of patents, trademarks, designs and other similar rights subject to deposit or registration, regardless of whether the matter has been the result of an action or of the defense, the courts of the State bound by this Convention in which the deposit or registration has been applied for, made or deemed to have been made under the provisions of an international convention or a Community instrument
  • As regards the enforcement of judgments, the courts of the State bound by this Convention of the place of enforcement

In addition, in some cases there may be cases of “express submission“. As stated in Article 23, if the parties, at least one of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention shall have jurisdiction over any dispute which has arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive, unless otherwise agreed between the parties. Article 24 provides for “tacit submission“; when the defendant enters an appearance in the court of a State party to this Convention, that court shall have jurisdiction, provided that it does not concern matters subject to exclusive jurisdiction, and prevailing over the express submission.

Where a court of a State bound by this Convention is seised of a dispute over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction (Article 25), and where in proceedings concerning the same cause of action the courts of several Member States declare that they have exclusive jurisdiction, the court first seised shall decline jurisdiction in favour of the court first seised. A court shall be deemed to be seised of a dispute as soon as the document instituting the proceedings or an equivalent document has been lodged with it, provided that the plaintiff has not subsequently failed to take all necessary steps to have the document instituting the proceedings served on the defendant.

In relation to the structure of the judicial forums, it could be represented by means of a pyramid.  At the top would be the “exclusive forums“, those rules of jurisdiction that confer jurisdiction on a particular court without any other court in any other State being able to hear it. At a second level is the “forum based on submission“, which is one that attributes jurisdiction to a court by agreement or agreement of the parties. This submission serves to attribute jurisdiction to the agreed judge as long as it is not a matter in which there is exclusive jurisdiction. In those matters in which there is an exclusive forum, the submission is irrelevant. And finally, in third place is the “general forum of the defendant’s domicile“.

In relation to the national jurisdiction in Spanish territory, Article 36 of the Civil Procedure Law (LEC) determines that the extent and limits of the jurisdiction of the Spanish civil courts will be determined by the provisions of the Organic Law of the Judiciary (LOPJ) and the international treaties and conventions to which Spain is a party.

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Navas & Cusí Abogados
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