There have been significant legislative developments in the Spanish judicial system over the last few years.
These developments began with the enactment of the Civil Procedure Act 7/2000, of 2000, which entered into force in 2001, repealing the old Civil Procedure Act of 1881.
On July 9, 2003, a new Insolvency Act was passed (Act 22/2003). This Insolvency Act, which took effect on September 1, 2004, intends to bring Spanish legislation in line with insolvency systems of other Western European countries and triggers a radical change in the country’s antiquated insolvency legal regime. One of the most important developments is the simplification of the old procedures (which separated civil and commercial insolvency and bankruptcy from temporary receivership) through the introduction of a new, singular, insolvency procedure.
A new court system has also been established with the creation of the so-called ‘commercial courts’ to deal with insolvency proceedings and other commercial matters. The first commercial courts began operating on September 1, 2004.
According to Act 8/2003, of July 9, on the Reform of Insolvency Proceedings, which provides for the creation of these new courts, all matters related to bankruptcy proceedings will be dealt with by commercial courts, including specific matters belonging to other disciplines (civil, labour and contentious-administrative); such as, for instance, all interim measures and enforcement proceedings affecting those assets; or all actions regarding collective dismissals or the collective suspension or modification of labour contracts in which the bankrupt is the employer; together with those regarding the suspension or termination of senior executive contracts. This is due to the fact that these disciplines are considered to be of special significance to the bankrupt’s assets, and must, therefore, be heard by commercial courts.
Commercial courts will not only have jurisdiction over insolvency cases but will also hear cases on the following matters (which will be taken from the ordinary workload of the courts of first instance):
- Unfair competition, industrial property, intellectual property and publicity;
- Proceedings brought in relation to the legislation on commercial companies and co-operatives, such as those challenging corporate resolutions;
- Transport and maritime disputes;
- Disputes regarding standard term contracts;
- Appeals against decisions of the General Directorate of Registries and Notaries.
- Procedures for the application of articles 81 and 82 of the European Community Treaty; and
- All issues arising from the application of Spanish legislation on arbitration to the above mentioned matters.
The judges sitting in these new courts are expected to have an in-depth knowledge of the matters brought before them, so that they may make fully informed decisions on matters of unquestionable technical difficulty, and do it more efficiently. The expected broader unity and understanding in the interpretation of law will also result in greater legal certainty.
As regards the underlying purpose of the creation of these specialist commercial courts, it has been said that commercial entities require a reliable dispute resolution system and, for this reason, an in-depth understanding of certain areas of law is increasingly important in today’s society. In this regard, legal certainty has been considered to be of economic value; and, thus, it can be said that our courts play a key role in such economic development.
As a general rule, according to Act 8/2003, commercial courts will be located in the capital of each Spanish province. The number of courts in each province will be decided on the basis of different factors, such as the number of proceedings that are currently dealt with per year on matters attributed to these new courts.
The initial distribution of these courts is as follows: 5 commercial courts in Madrid, 4 in Barcelona, 2 in Valencia and 1 in each of another 13 provinces (Cadiz, Malaga, Seville, Oviedo, Palma de Majorca, Las Palmas de Gran Canaria, Santa Cruz de Tenerife, Alicante, La Coruña, Pontevedra, Murcia, San Sebastian and Bilbao). Thus, 24 new commercial courts have been created.
The Government has also provided for the creation of 12 additional courts in other provinces. These courts will not be exclusive commercial courts, as they will also hear cases corresponding to the ordinary civil courts of first instance.
It is also worth mentioning that the Commercial Court of Alicante has been appointed the European Union Trademark Court for Spain, with jurisdiction over all of Spain. Consequently, a special division of the Court of Appeal of Alicante has also been created to hear appeals on the resolutions rendered in these matters by the Commercial Court of Alicante.
The Spanish Government has acknowledged that they are in the initial stages of developing these new courts, and have expressed their desire to create as many commercial courts for the future as deemed necessary.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.