A new disposition (Act 29/2015, of July 30) on international legal cooperation in civil matters has come into force. The Act introduces many new features on the matter and in particular, how to prove foreign law that might be applicable to the case.
The regulation on foreign law applicable in the procedures in Spain is quite curious. So far, the only procedural reference was Article 281.2 of the Code of Civil Procedure, not very clear about the consequences of lawyers not proving enough the foreign law that they intend to enforce. It was clear that the judges had always the power to investigate on their own and apply that foreign law it, but what if they did not? In fact, too often judges did not investigate and simply applied the Spanish law. However, in the absence of a procedural rule protecting against such decisions, the judgment was always poorly substantiated in possible appeals.
Article 33.3 of the new Act provides that, in cases in which the parties have not fully justified the content and validity of foreign law, the Spanish law may exceptionally apply.
Therefore, it seems that it could be decided: in case the client will be better defended by a foreign applicable law, we’ll worry about its justification before the Judge; but if it was more interesting the application of the Spanish law, we will leave the initiative to the other party to prove and justify it. The justification of a foreign law is usually expensive and if the law now applies “exceptionally” the Spanish one, I am convinced that very few judges will take the initiative to investigate the foreign law, though they still retain this power.