Spanish Role in International Private Law

Spanish role in International Private Law

The current Spanish model of Private International Law (PIL) is directly linked to the Spanish history. Spain has been a country isolated for centuries and its PIL model has been traditionally characterized both by a small number of rules and its lack of sophistication and scarce implementation. The original Spanish model of PIL as regards choice-of-law rules were embodied in the Civil Code of 1889.

The Spanish model of PIL constitutes a distinct sector of the Spanish legal order. As an independent part of the Spanish Legal System, PIL shares with the other sectors of the system the “sources” of the Spanish Legal order.

Although the Spanish model of Private International Law has traditionally had a domestic origin, it has undertaken a relentless rise in the number of rules of international origin. In some sectors like international jurisdiction in civil matters or international judicial cooperation, the rules of national origin embodied in the Act of the Judiciary Power of 1985 coexist with a significant number of provisions of European origin or conventional origin.

The Spanish choice-of-law system is mainly featured by its certainty. This certainty leads in many cases to a certain amount of rigidity, although some rules allowing the authorities’ discretion can also be mentioned. This idea can be viewed from two different perspectives, positive and negative. The positive side of the codification, on the one hand, although the Spanish choice-of-law system is currently scattered in many provisions coming from different sources, it must be highlighted that the presence of written rules stating choice-of-law criteria provides citizens with a high level of legal certainty. On the other hand, as the negative side of the codification, this legal certainty provided by written rules is sometimes deemed as rigidness, since the Spanish choice-of law system contemplates a number of rigid choice-of-law rules, which are not always able to provide the most accurate solution to every case due to their inflexible nature.

As a general rule, the Spanish choice-of-law system does not foresee the application of different domestic laws to different aspects of the same cause of action. When designing the domestic choice-of-law rules, the Spanish legislator has contemplated broad legal categories, to which one single law should be applied: that is, the one pointed out by the relevant choice-of-law rule.