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21 SYIL 1 (2017)

handle is hein.intyb/spanyb0021 and id is 1 raw text is: The rules of international jurisdiction in Spanish law Enrique PECOURT GARCIA* I INTRODUCTION i. The statutory distinction between laws ad ordinandam litem and rules ad decidendam litem is often cited as a doctrinal precedent of so-called conflicts of jurisdiction. This reference could mistakenly lead one to believe that conflicts of laws and conflicts of jurisdiction have a common doctrinal origin and have developed in parallel. Obviously, this has not been the case: on a 6tudi6 pendant des si'cles les conflits de lois sans reprendre parall61ement l'6tude de la competence judiciaire.' Today, however, the intense attention given in the scholarly literature to what is also known as international procedural law,- due to both its substantive importance and the increasingly obvious interconnection (1937-1997). Former Professor of International Law, Universitat de Val&ncia. This work was previously published in Spanish as Las normas de competencia judicial internacional en el Derecho espafiol, in 2 Anuario del Instituto Hispano- Luso-Americano de Derecbo internacional (1963), 195-208. Ed.: As in previous cases in this same section, we have tried to adapt the original format of this contribution to the the format normally used in SYbIL. H. Batiffol, Observations sur les liens de la comp6tence judiciaire et de la comp6tence I6gislative, in De Conflictu Legum: Essays presented to R. D. Kollewijn and J. Offerbaus (Sijthoff, Leiden, 1962), at 66. In the most generic sense, this subject comprises the set of issues involved at the procedural level in the domestic legal regulation of so-called private international relations or situations (also called multinational or extranational relations or private international transactions). The subject still lacks a clear substantive delimitation in the general scheme of legal disciplines. This is mainly due to the disparities in the scholarly works offering conceptual and systematic descriptions of it. Whilst a detailed analysis of the terms in which the subject is approached in the literature falls beyond the scope of this essay, it should be recalled that the core question consists in determining the interdisciplinary relations between private international law sensu stricto, primarily made up of conflicts of laws, and the subject at hand. For one school of thought, the latter is a fully integrated part of private international law, constituting a primordial dimension thereof (Anglo-Saxon conceptions) or one of its special parts (the thesis generally held in French doctrine and defended in Spain by Trias de B6s, Miaja de la Muela and Aguilar Navarro, amongst others), whereas for another it is a separate discipline (Italian and German doctrine) or a substantive chapter of external state law or state law concerning external relations (Von Bar, Morelli). Other particularly nuanced conceptions frame it as procedural law for foreign nationals (Goldschmidt) or, more recently, procedural assistance law combined with rules of domestic law referring to the involvement of foreign nationals in the process (Cf. N. Alcali-Zamora, Bases para unificar la cooperaci6n internacional procesal, in Cursos monogrdficos de la AIDCI, Vol. VI (Havana, 1957), at 46-47). This diversity of doctrinal conceptions has clear methodological, terminological, and even substantive consequences. Methodologically, each conception gives rise to a different degree of interdisciplinary relationship between private international law and the subject at hand. Terminologically, advocates of including the latter in private international law prefer to speak of conflicts of jurisdiction (thus, in Anglo-Saxon terminology, the conflict of laws comprises the choice of law and the choice of jurisdiction); in contrast, those who defend an independent conception of the subject include it in what they call international procedural law, although, naturally, there are exceptions in each current in favour of the prevailing terminology of the other (in the Spanish doctrine, Trias de B6s speaks of conflictos de competencia judicial (conflicts of jurisdiction) whilst Miaja de la Muela uses the generic term Derecho procesal internacional (international procedural law)). Finally, variants can also be found in the substantive content. In general, the following are recognized as core matters: the determination of the rules of international jurisdiction (cf. infra, No. 5), the law regulating the process, and the enforcement of foreign judgments (although at least one Anglo-Saxon author, Graveson, excludes the recognition of judgments of foreign courts from the choice of jurisdiction).

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