Last Updated July 15, 2019

Law and Practice

Contributed By Pérez-Llorca

Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

The final judgment may consist of (i) a declaratory award, (ii) an affirmative or negative obligation to do something, (iii) an obligation to pay (iv) an obligation to hand over something other than an amount of money, and/or a (v) penalty.

Damages compensation comprises the loss suffered and the gain which the creditor failed to obtain.

Should the debtor be in good faith, they will only be liable for foreseen damages or damages which could have been foreseen and are a necessary consequence of the breach or infringement. On the contrary, if the debtor is considered to have acted with wilful misconduct they will be liable for all known damages.

Courts may not award punitive damages unless the parties expressly included the application of a penalty clause in the contract. Nonetheless, the court is allowed to reduce the amount of the penalty where the principal obligation has been performed only partially or irregularly by the debtor.

In general, a successful party may collect legal interest based on the period before judgment is entered. Additionally, from the day of the judgment the party may claim two percentage points over the legal interest rate until the date the compensation is paid.

Moreover, Act nº 3/2004 foresees a specific interest of eight percentage points over the legal interest rate in order to discourage late payment in commercial transactions.

There are no statutory limits on the awarding of interest.

Broadly speaking, the mechanisms available for the enforcement of a domestic judgment are: (i) seizure of cash, salary, wage pension, bank accounts, remuneration or similar; (ii) attachment and appraisal of assets (eg securities, financial instruments, real estate, moveable property…) for future realisation or auctioning; (iii) constitution of administration over all or part of the assets  so that their yield may be used for payment; (iv) employment of personal distraining measures or monetary fines where the enforceable right contains a penalty or an affirmative or negative obligation; (v) publication of the judgment in the media.

The enforcement procedure for a judgment from a foreign country may vary depending on whether that country is an EU member, part of an international convention or not part of any.

If the judgment comes from an EU member, Regulation 1215/2012 would be applicable. In this case, the party seeking to initiate the enforcement proceeding shall submit a copy of the judgment and a certificate issued in accordance with annex I of the regulation.

Should the judgment come from a third country (ie, a non-European country), the procedure will depend on the bilateral or multilateral agreement entered into with Spain.

In the event that no convention is applicable, we shall resort to Act nº 29/2015 on international judicial co-operation on civil matters, which foresees the application of an exequatur procedure.

In this case, the party seeking the recognition of judgment shall file a lawsuit against the debtor together with (i) the original or an authentic copy of the judgement; (ii) a document stating whether the judgment was given in default of appearance; (iii) any other document stating that the judgment is final and enforceable; and (iv) the corresponding translations into an official language in Spain. The court will decide after hearing the defendant and, if the judgment is recognised, it will be subject to enforcement according to the general regulation stated in the SCPA.

Pérez-Llorca

Paseo de la Castellana, 50
28046 Madrid

+34 91 436 04 20

+34 91 436 04 30

info@perezllorca.com www.perezllorca.com
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Authors



Pérez-Llorca Pérez-Llorca has a Litigation & Arbitration practice in both its Madrid and Barcelona offices. The team is composed of eight partners, two counsel and 35 other qualified lawyers. Lawyers act for clients before all legal forums throughout Spain, and focus on both commercial litigation and international and domestic arbitration. The firm has extensive experience in defending clients’ interests before the Public Administrations, and before the CJEU (Court of Justice of the European Union). The lawyers have broad experience in complex cases relating to corporate issues, shareholders’ disputes, directors’ liability, contractual disputes, unfair competition, intellectual property, energy, construction, engineering, insurance, banking, tort liability, privacy and personal image, and restructuring and insolvency.

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