New Spanish Standard to Prove Content of Foreign Law

The author of this post is Javier Carrascosa González who is a professor of private international law at University of Murcia.

Determining which law should govern a case with foreign elements where the theoretically applicable foreign law has not been adequately proven before the Spanish courts has always been a highly controversial issue in Spanish private international law. This is due to the fact that Spanish law makers have not addressed the question for years, and when they have, they have only done so partially and in a rather unfortunate way. In the absence of clear statutory guidance, Spanish courts have traditionally relied on principles developed in in nineteenth century caselaw. This position, however, was changed with a landmark decision by the Supreme Court on October 30, 2024 (ECLI:ES:TS:2024:5263). This blog post presents the Spanish legal position before the judgment and how the judgment has changed that position. A more extensive comment written by the author of this post together with Alfonso-Luis Calvo Caravaca may be found here.

Legal background

Even before the enactment of the Civil Code of 1889, the Spanish Supreme Court had already drawn up strict rules on the application of foreign law in Spain.

According to the Supreme Court’s old caselaw, the principle of jura novit curia should not extend to foreign law. Instead, foreign law should be treated as a mere fact that the parties must invoke and prove. However, the Spanish Supreme Court also held that a Spanish court may intervene in the proof of foreign law, although it is not obliged to do so.

Also, and this is what is most relevant here, in the absence of evidence of foreign law by the interested party, Spanish courts should fall back to Spanish substantive law (back to lex fori). Therefore, if the parties did not prove foreign law, the result was the triumphant application of Spanish substantive law in a controversy that, initially, should have been governed by foreign law according to the conflict of laws rules in force in Spain.

The Supreme Court motivated the fall-back application of Spanish substantive law on two main arguments. First, it was said that the lex fori presents a “general and residual application” to cover all cases of private law both domestic and international. Secondly, it was also argued that if foreign law is not invoked and/or proven, Spanish substantive law must be applied because only in this way can denial of justice be avoided and only in this way can an answer to the dispute be provided.

Apart from the two arguments above, it cannot be ignored that this old approach is also connected with judicial convenience and may be seen as an expression of the homeward trend. Where the parties fail to prove foreign law, Spanish substantive law is applied, without inquiry, keeping the dispute “at home”.

Spanish academic literature has long criticised the nineteenth-century approach of the subsidiary application of Spanish domestic law. It is said to generate legal uncertainty, encourage unlawful and evasive manoeuvres by the parties acting in bad faith, disregard the mandatory nature of conflict rules and leads to inadequate and unfair results. In truth, the old approach was based more on judicial convenience than on legal values enshrined in the Constitution and in the laws. However, convenience is not justice.

Judgment

In the case decided by the Supreme Court ruling of 30 October 2024, two individuals, British nationals habitually resident in the United Kingdom, brought an action against a British company before the Spanish courts for the annulment of some timeshare contracts. The plaintiffs also requested the restitution of the amounts paid to the company. The contracts at issue contained an express non-exclusive jurisdiction clause in favour of the English courts and also contained a choice of law clause in favour of English law.

As the plaintiffs had brought their action on the basis of Spanish substantive law exclusively, they (logically) did not prove the content of English law. The defendant company reacted and stressed that the contracts were valid under English law. However, also the defendant did not prove the content of English law, but insisted that the burden of proof of English law lay with the plaintiff. The Supreme Court, after confirming the jurisdiction of the Spanish courts to decide the case, stated that the contracts at the centre of the dispute were governed by English law.

With the debate on proof of foreign law thus framed, the Spanish Supreme Court upheld the appeal lodged by the English defendant company. The result is clear: the timeshare contracts are governed by English law, which neither party has proven and must therefore be considered valid. The plaintiffs should have proven English law but they did not. The plaintiffs should have invoked legal grounds taken from English law, but they did not do that either.

In short: when a party bears the burden of pleading and proving foreign law and fails to do so, the claim must be dismissed. In such cases, therefore, (i) Spanish substantive law cannot be applied, (ii) the defendant should not be required to prove the foreign law applicable to the merits of the case, and (iii) the plaintiff’s claim must be dismissed.

Thus, Spanish substantive law may only be applied to the merits of a case governed by foreign law as provided for in Article 33.3 Spanish Act 29/2015: when the party tries, in good faith, to prove the applicable foreign law and fails to do so because it is, de facto, impossible. That is the case, for instance, of lawless states or natural disasters that prevent the proof of foreign law. As it is obvious, that was not the case of the United Kingdom. In any other cases, Spanish substantive law (lex materialis fori) can never be applied.

All in all, the new case law of the Supreme Court can be summarised in the following four rules.

First rule: when a dispute must be settled in accordance with foreign law, the party bringing a claim before the Spanish courts must base it on the foreign law in question and not on Spanish substantive law.

Second rule. When a dispute is governed by foreign law, that law must be proven by the party bringing the claim. The party is obliged to base its claim in legal grounds taken from the applicable foreign law. That party is the plaintiff and not the defendant, unless he brings a counterclaim.

Third rule. If the party obliged to prove foreign law fails to do so, the court shall dismiss the claim. Such dismissal of the claim is a rational, reasoned and legally founded response and does not constitute a denial of justice whatsoever.

Fourth rule. Exceptionally, Spanish substantive law shall only be applicable to a dispute governed by foreign law when it is impossible for the parties to prove the content of that legal system.

Conclusive remarks

With its new judgment, the Supreme Court of Spain has placed the conflict rules at the top of the pyramid of the private international law system. The mandatory nature of the conflict rules is not merely “formal” anymore, but has become “real” both for the courts and the parties. Furthermore, the Spanish Supreme Court puts Spanish substantive law in its place. It should not be applied to disputes which, under Spanish or European conflict rules, are subject to foreign law.

By doing so, the Supreme Court of Spain reinforces the dignity of the conflict rule. As a matter of fact, the legal regime for the proof of foreign law, under the terms established by the Supreme Court, guarantees a real imperativeness of conflict rules, prevents forum shopping, leads to the dismissal of frivolous and incorrectly argued and unfounded claims, punishes procedural bad faith in the proof of foreign law and, finally, makes private international law a powerful legal instrument that efficiently regulates international private situations in the globalised world of the third decade of the 21st century. Welcome to the luminous side of the force of the conflict of laws!