The proof of foreign law is today particularly complex and important. In this post I give some clues and focus on the Foreign Law test by notaries and Registrars. 

In relation to the foreign law test, 

1.- There is no instrument in force either in the European Union or in the Hague Conference, despite the attempts made to this end to regulate the thorny problem of proof of Foreign Law.

2.- The general rule is that you must comply with the new regulation in Law 29/2015, of July 30, on international legal cooperation in civil matters (hereinafter, LCJI). From the regulation of art, 33 we can extract a series of criteria to prove Foreign Law. 

3.- They are the parties (requesting or intervening parties) who are responsible for the Foreign Law test. However, notaries and registrars as officials can prove Foreign Law. 

The first criterion of the LCJI is that the proof of the content and validity of foreign law will be subject to the rules of the Civil Procedure Law and other applicable provisions on the matter, says the article 33 LCJI. This means a general referral to art, 281.2 of the Civil Procedure Law, according to which it is not only necessary to prove the content of the foreign law but also its validity (see, among others, Judgments of the Supreme Court of May 11, 1989, September 7, 1990 and January 25, 1999, and Resolution of January 20, 2011). In this sense, “the isolated citation of foreign legal texts is not enough but, on the contrary, the current meaning, scope and interpretation attributed by the jurisprudence of the respective country must be proven (see R DGSFP, of July 28, 2020, FJ 6). There is no doubt that it is a demanding criterion especially in relation to jurisprudence that I particularly interpret as a reference to the systems of the common law. The Spanish jurisdictional bodies will determine the probative value of the test carried out to prove the content and validity of foreign law in accordance with the rules of sound criticism (art, 33.2 LCJI).

 Among these Spanish jurisdictional bodies are notaries and registrars who are empowered to prove Foreign Law but not obligated (see R DGSFP, of July 28, 2020). Public authorities that perform non-jurisdictional functions (cf. Articles 281 of the Civil Procedure Law, 168.4 of the Notarial Regulations and 36.2 of the Mortgage Regulation), may carry out under their responsibility an assessment regarding the allegation of foreign law even if it is not proven by the parties, provided that they have knowledge of it (see, among others, Resolutions of December 14, 1981 and February 5 and March 1, 2005).   It should be noted that the proof of foreign law is a power not an obligation of the notary and the registrar. If it is not proven, and the registrar does not know it, the registration must be suspended.

 This applicable legislation must include the mortgage legislation which has its own set of rules (art, 34 to 36 RH). Article 36 of the HR contains an important norm since “the observance of foreign forms and solemnities and the aptitude and legal capacity necessary for the act may be accredited, among other means, by means of an assertion or report of a Spanish Notary or Consul or Diplomat, Consul or competent official of the country of the applicable legislation. (…). " 

According to the RH and the LCJI there are three forms of evidence in extrajudicial matters. The notary's statement or report. The report of the Consul, diplomat or official of the foreign country and the new system proposed by the LCJI.

Notaries can use two means: the assertion and the report. Assertion means that the notary authorizing a document and under his responsibility accredits the necessary extremes of Foreign Law. A report is a document external to the public document that the notary issues to prove the requested extremes of Foreign Law. It is not properly a public instrument. 

What are the extremes of foreign law to prove? The extremes to prove the Foreign Law are: 

1 / foreign forms and solemnities. An example, the Swiss heirs certificate. The notary must indicate in the Spanish public document that the certificate provided has been issued in accordance with the form and competence of Swiss law and, where applicable, apostilled (Switzerland is not an EU). Another example is the accreditation by computer means of the existence of a foreign company. The notary can go to the website and obtain the information he needs.

2 / the aptitude and legal capacity necessary for the act. E-justice pages will be used regularly.  

3 / to the accreditation of the validity of the act carried out according to the applicable law. (R, of March 1, 2005).

Notaries and registrars must endeavor to have knowledge of the foreign law applicable to all in those neighboring countries, and specifically the EU through the E-justice portal managed by the European Commission.

E-justice portal European which contains a lot of information to obtain the Foreign Law test.

You can contact Contact Bosch-Bages to find out more lproof of foreign law.