Defendant's default as cause for rejection of recognition in the Law on International Legal Cooperation in Civil Cooperation: A comparative approach with the Brussels system

Abstract

 The new Spanish regime of recognition and enforcement of foreign judgments, contained in the Law on International Legal Cooperation in Civil Matters, raises certain issues regarding the practical application of the control of defendant’s procedural guarantees (article 46.1 b). In relation with this cause for rejecting the foreign decision’s recognition, the national legislator has opted for a formal approach, along the lines of the former Brussels Convention of 1968. Thus the internal law diverges consciously from the current European Regulations (Brussels I Regulation and Recast). An excessively formalist interpretation of the exigence of due service might open the gate to defendants’ fraudulent or abusive conducts, as well as to unjustified cases of refusal of the recognition when an initial irregularity in the notification could have be corrected later in the foreign procedure. This paper provides interpretative solutions in order to correct these possible diversions.