Anlässlich der aktuellen wirtschaftlichen Situation, scheint die Überarbeitung der Norm hauptsächlich unter wirtschaftlichen Gesichtspunkten vorgenommen worden zu sein.

Zusammengefasst sind die Ziele des neuen Gesetzes eine verbesserte Rechtssicherheit im Konkursrecht, die Eröffnung neuer Wege, um das Gleichgewicht zwischen der wirtschaftlichen Lebensfähigkeit eines Unternehmens und den notwendigen Rechtsgarantien im Konkurs zu finden, der Anstoβ zur Benutzung elektronischer Mittel im Konkursverfahren, die Vereinfachung und Beschleunigung des Konkursprozesses und eine wesentliche Verbesserung der Rechtsposition der Arbeitnehmer.

Es wurde mithin versucht, die Rolle des Konkurses im Dienste der wirschaftlichen Lebensfähigkeit und Dynamisierung der spanischen Unternehmennetzes zu normieren.

Im Folgenden werden wir zunächst die verschiedenen Ziele des Gesetzes analysieren, bevor wir dann zu einer kurzen und kritischen Stellungnahme hinsichtlich dessen Unzulänglichkeiten kommen.

I) Vertiefung der Alternativen zum Konkurs oder dem Konkurs vorgeschaltete Einrichtungen

Eine von juristischem Ballast entschlackte, agilere und kostengünstigere Alternative wird nunmehr auf dem Weg sogenannter Refinanzierungsabkommen angeboten. Dabei kann der Schuldner dem Gericht formell die Aufnahme von Verhandlungen mit Gläubigern mitteilen, mit denen er versucht ein Refinanzierungsabkommen abzischlieβen. Es ist dann möglich, dieses Abkommen amtlich anerkennen zu lassen. Zu beachten ist, dass diese Refinanzierungsabkommen auf einem Plan beruhen müssen, der die kurz- und mittelfristige Fortführung der unternehmerischen Tätigkeit sicherstellt.

Mit dem Ziel, den in auf der Suche nach Refinanzierung befindlichen Gesellschaften Liquidität zu verschaffen, wurde das angelsächsische Modell des „fresh money“ eingeführt, welches es den Gläubigern, die neue Einlagen leisten, ermöglicht, 50% derselben als Masseverbindlichkeiten anzusehen. Mit anderen Worten geht es darum, dass es Investoren Anreize geboten werden sollen, in diese Gesellschaften zu investieren und ihnen so die Lebensfähigkeit und Fortführung ihrer Aktivitäten zu ermöglichen.

II) Vereinfachung und Beschleunigung des Konkursverfahrens

Das Insolvenzverfahren sollte sich nicht länger als nötig hinziehen, um den Beteiligten nicht durch den Wertverlust der Güter der Kunkursmasse zu schaden.

Das Gesetz nimmt sich der Regelung des abgekürzten Konkursverfahrens an, durch das sowohl Kosten als auch der Zeitraum des Verfahrens reduziert werden sollen. Die Entscheidung darüber, ob dieses Verfahren zur Anwendung kommt, obliegt dem Richter, der nach folgenden Kriterien eine Einzelfallentscheidung trifft: Situation der in des Unternehmens, Anzahl der Angestellten, mögliche Verhandlungen über einen Verkauf oder eine Umstrukturierung.

Das Gesetz verbessert ebenfalls das System des öffentlichen Konkursregisters, welches von nun an als Instrument für mehr Transparenz von Insolvenzen dienen soll und somit mehr Sicherheit für alle am Konkurs Beteiligten bietet.

Um das hergebrachte, ausführliche Konkursverfahren weiterhin attraktiv zu halten, gibt es nun die Möglichkeit, strukturelle Veränderungen während des Konkurses vorzunehmen. Auβerdem können nunmehr Konkursforderungen gekauft werden.

III) Verbessung des Schutzes der vom Konkurs betroffenen Arbeitnehmer und anhängige soziale Fragen

Die neuen Bestimmungen im Art. 64 des Konkursgesetzes versuchen Konflikte zu vermeiden, die zu Lasten der Arbeitnehmer gehen würden, sodass der Impakt, den ein Konkurs auf selbige hat, nunmehr stärker in den Blickpunkt rückt.

Auch werden die Maβnahmen nunmehr mit der letzten Arbeitsrechtsreform abgestimmt, sodass, sobald die Insolvenz angemeldet wurde, alle kollektiven Auflösungen von Arbeitsbeziehungen vor dem Konkursrichter zu erledigen sind.

IV) Die Wichtigkeit der Rolle der Konkursverwalter

Die Voraussetzungen, um als Konkursverwalter benannt werden zu können werden ebenso vergröβert, wie die Professionalisierung vorangetrieben wird. Dabei gibt es vor allem zwei grundlegende Neuigkeiten zu beachten:

i. Es wird verstärkt davon ausgegangen, dass die Konkursverwaltung aus einer einzigen Person besteht, welches Auswirkungen auf die Entscheidungsfindung und die Kostenersparnis mit sich bringt. Dieses Modell wird schon jetzt in vielen Ländern praktiziert und ist das dem Funktionieren des Systems zuträglichste.

ii. Weiterhin kann nunmehr auch eine juristische Person Konkursverwalter sein. Diese Option wird ebenfalls die Kosten reduzieren, ermöglicht es doch Richtern, speziell in diesem Bereich tätige Unternehmen mit dieser Aufgabe zu betrauen.

Das Gesetz will auch die verschiedenen Verantwortlichkeitssysteme vereinheitlichen, die nebeneinander existieren können:

i. Die Konkursverwaltung ist die, die nunmehr notwendig die Verantwortung für die Schäden an der Gesellschaft, während des Konkursverfahrens durch ihre Schuld entstehen, übernehmen muss.

ii. Die Verantwortung im Konkursverfahren für das Defizit in der Liqudation wird beibehalten, obschon das juristische Verfahren, wie Konflikte gelöst werden können, zu verbessern versucht

V) Die Genauigkeit des juristischen Systems in einigen Aspekten des Konkurses

Es erscheint uns angebracht, vorliegend zwei Punkte zu unterscheiden:

i. Die Stärkung der verbundenen Konkurse: Im Titel I des neuen Gesetzes wird ein Kapitel III eingefügt, dessen Bestimmungen nunmehr vorsehen, dass Konkurse, die zusammen erklärt wurden, auch zusammen behandelt werden, ohne dass jedoch die Aktiv- und Passivmasse konsolodiert würden.

ii. Die genauere Regelung im Fall unzureichender Konkursmasse: es wird eine Reihenfolge festgelegt, in der Konkursforderungen beglichen werden sollen, für den Fall, dass die aktive Masse nicht ausreicht. Die Erfahrung hat gezeigt, dass sich die Konkursverfahren ohne (hinreichende) Konkursmasse regelmässig am längsten hingezogen haben.

Gegenwärtig wird das Konkursverfahren als natürliches Verfahren der Krisenbewältigung eines Unternehmens nur selten genutzt. In Spanien liegt dem ein kulturelles Problem zugrunde, weswegen die weit überwiegende Mehrheit der im Konkurs befindlichen Unternehmen aufgelöst werden: unter Unternehmern ist es immer noch weit verbreitet, den eigenen Konkurs als „Schande“ anzusehen, sodass er so weit wie möglich herausgezögert wird. Häufig ist es bei der Konkursanmeldung dann schon zu stät.

Des Weiteren kollabieren Konkursrichter hierzulande aufgrund der Finanzkrise und dem damit verbundenen Anstieg von Konkursen, sowie einer unzureichenden Ausstattung mit qualifiziertem Personal unter der Anzahl der zu bearbeitenden Fälle, was eine weitere Verzögerung bedeutet.

Trotz des Umstandes, dass das neue Gesetz die Refinanzierungsabkommen und das Konkursverwalterwesen in Angriff nimmt, so scheint es doch nicht so, dass die Neuerungen die Probleme der letzten Jahre gänzlich aus der Welt schaffen kann. Die Mittel der Justiz, um alle Interessen hinreichend zu schützen sind weiterhin unzureichend. Es fehlt eine entsprechende Reform der Handelsgerichte und Lösungen für die Verschuldungen von Familien und Einzelpersonen. Nicht zuletzt muss auf das niedrige Befriedigungsniveau von Gläubigern verwiesen werden, das aus dem verspäteten oder Nichtgebrauch des Konkursverfahrens resultiert – welches eigentlich die natürliche Art der Krisenbewältigung in Unternehmen sein sollte.

Leyre Barragán y Marina Bugallal
Mariscal Abogados
Eurojuris España, intenationales Netzwerk von Anwaltskanzleien

The innovations introduced by this Act may be summarized in four points: the reduction of operation costs and organization of capital companies (along the lines initiated by Royal Decree-Law 13/2010 of December 3, in fiscal, labour and liberalization activities to promote investment and job creation), the introduction of modernization standards in company law, the abolition of the differences between public liability and limited liability companies and, finally, the transposition into domestic law of the European Directive mentioned above.

The Following is an examination of each of these points:

1. The Reduction of Operation Costs and Organization of Capital Companies

This modification involves firstly, the elimination of advertising requirements, official or private, in relation to the following matters:

i. The convening of General Meetings of Shareholders: the Memorandum and Articles may provide that notification will only be made by the publication of a notice in the website of the company or by any written means communicated individually to all members (Article 173.2 LSC).

ii. The agreements to amend Memorandums and Articles of Association of corporations: Article 289 of the Capital Companies Act, which required the advertisement of any modification agreement of the constitutional documents of the company on the web or in newspapers prior to entry in the Companies Registry is deleted.

iii. In the dissolution of the corporation: the dissolution is no longer required to be published in one of the large Daily Newspapers in the area of the company´s registered office in the event that the company has no website (section 369 LSC). Dissolution can now be entered directly into the Commercial Registry.

iv. During the liquidation period: it removes the obligation of publication of company accounts in the Official Gazette of the Mercantile Registry (BORME). It will be sufficient that the liquidators present the accounts at a General Meeting (Article 388.2 LSC).

Secondly, the Memorandum and Articles of Association of a company may establish different modes of organization and it will be the Board that chooses the mode it deems appropriate, without having to amend the constitution of the company (Article 23e) LSC).

2. Introduction of Modernization Standards in Company Law

On this point it is worth noting one of the rules in relation to the Board of Directors.

Administrators representing at least one third of the elements of the company have the right to call a meeting of the Board of Directors, following the failure without cause of the President of the Board to call a board meeting within a month of being requested to do so. (Article 246.2 LSC).

3. The Abolition of the Differences Between the Treatment of Public Liability and Limited Liability Companies

The elimination of differences can be seen principally:

i. In the calling of General Meetings (section 173 LSC) unifying the rules for both types of companies.

ii. The possibility of introducing into the Memorandum and Articles of Association causes for exclusion of shareholders to all companies (Section 351 LSC). This was previously only possible in limited liability companies.

ii. The appearance of inactivity as a cause of dissolution for any company (section 363.1a, LSC), an issue that before the reform was only possible for limited liability companies.

iv. The generalization of the default rule that directors of the company are automatically converted into liquidators on the dissolution of the company (Article 376.1, LSC) which also was previously only for limited liability companies.

v. In relation to the responsibility of the liquidators (section 397 LSC), establishing for both types of company that the liquidators will be accountable to the members and creditors for any damage caused wilfully or negligently, removing the requirement of fraud or gross negligence in relation to public companies.

4. The Transposition into National Law of Directive 2007/36/EC

The Directive aims to facilitate and promote the exercise of rights to information and voting rights of shareholders of listed companies in the European Union.

A new Section 2 is added to Chapter VI on the functioning of the General Meeting. Subsection 1 (Articles 514 521 LSC) contains general provisions in this regard. Subsection 2 (Articles 522 to 524 LSC) refers to participation in the General Meeting through a representative and Subsection 3 (Articles 525 to 526 LSC) refers to voting on resolutions. The purpose of the inclusion of these new provisions is to eliminate barriers for shareholders in relation to voting and the electronic participation in meetings.

In summary, this law brings Spanish legislation in line with the legislation of the European Union and tends to favour the development of enterprise, partly relaxing this regime and providing for more flexible operation and organization. To facilitate this development provisions imposing differences of regime that existed between public and limited liability companies have been removed which is an adjustment, clarification and harmonization of the system.

Finally, of note is that great importance has been attached to the use of electronic media: particularly the fact that the website of a company is considered as a tool of communication of basic legal information for company law and is a further guarantee of the rights of shareholders.

Mariscal Abogados
Eurojuris España, international network of law firms

Unter den Fachleuten, die am Entscheidungsprozess der Unterschrift eines Immobilien-Kaufvertrages beteiligt sind, ist der Anwalt der einzige, der Beratung mit der Garantie geben kann, dass dies nur seine Rolle ist und dass er ausschliesslich deshalb bezahlt worden ist. Er beratet, mit der absoluten Unabhängigkeit desjenigen, der weiß, das sein Honorar sowieso bezahlt wird, auch wenn die Operation nicht durchgeführt wird. Kurz gesagt, der Anwalt ist der einzige Fachmann, der ruhig dem Kunden sagen kann: bitte unterschreiben Sie das doch mal nicht! Deshalb ist die Beratung eines Rechtsanwalts vor der Unterzeichnung eines Immobilienvertrages so wichtig, und je früher man zu ihm kommt, desto besser.

In Immobilienmarkt neigen Vermittler oft dazu, die Intervention von Anwälten zu vermeiden, weil sie davon ausgehen, dass es die Kosten der Transaktion nur erhöht und daher wird ihren Handlungsspielraum reduziert. Aber die Realität ist ganz anders: die Kosten unserer Intervention sind sehr profitabel. Wir können tatsächlich viele Beispiele von Immobilientransaktionen geben, die niemals hätten ausgeführt werden können, wenn es nicht eine sofortige Intervention der Anwälte gewesen wäre. Die häufigsten Probleme, die wir lösen sind:
• Probleme mit den anwendbaren Ehegüterstand,
• die notwendige Formalisierung einer Erbschaftannahme,
• Gebäude wobei eine Erklärung des Neubaus erforderlich ist (auch wenn sie rechtlich gebaut worden, aber im Grundbuch noch nicht registriert, sind)
• Steuer- und Geldwäsche-Steuerungsprobleme, die spezifisch gebietsfremde Verkäufer oder gebietsfremde Käufer betreffen,
• besondere Verfügungsvollmachte, die notwendig sind, um den Vorgang zu formalisieren, wenn einer der Vertragspartner nicht bei der Formalisierung des Kaufvertrages anwesend sein kann…

Aber die Palette der Möglichkeiten ist enorm und jeder dieser Fragen kann den Verkauf beeinträchtigen oder sogar unmöglich machen, besonders in der heutigen Zeit, mit Mangel an Käufern und Überangebot an Wohnungen auf dem Markt. Darüber hinaus ist die Erfahrung in internationalen Eigentumsübertragunsgeschäften mit Nicht-Resident-Käufer oder Verkäufer im Moment entscheidend, da der Immobilienmarkt vor allem sein Angebot potentiellen ausländischen Käufern aus Ländern bietet, die heute mehr Kaufkraft und Interesse am Kauf von Immobilien in Spanien haben (Russen, Schweizer, Chinesen, etc.) …

Der Ausfall einer Immobilien-Transaktion bedeutet für den betroffenen Immobilien-Makler eine tatsächliche Ausgabe in Zeit, Hingabe, Reisen und Risikoanalyse, und diese Kosten finden keine Entschädigung, wenn der Betrieb am Ende nicht durchgeführt wird. Die Ursachen für ein solches Versagen sind oft rechtliche Probleme, die nur ein Fachanwalt früh genug vorsehen könnte, der mögliche Lösungen empfehlen könnte um den Verlust des Käufers zu vermeiden. Auch wenn keine der vorgeschlagenen Lösungen angenommen würde, konnte der Anwalt beraten, das Geschäft rechtzeitig zu verlassen, bevor man weitere unnötigen Kosten tragen muss. Das Zusammenarbeiten zwischen Anwälten und Immobilienmaklern oder anderen Vermittlern auf dem Wohnungsmarkt ist eine wichtige Geschäftsgelegenheit und die Synergien, die es erzeugt, sind sehr hilfreich, sowohl für die Anwälte als auch für die beteiligten Makler, da beide ihrem gemeinsamen Kunden das anbieten, mit Garantien kaufen oder verkaufen zu können und seine Entscheidung mit allen notwendigen Informationen zu reifen.

Carlos Prieto Cid
Tarracoiuris Rechtsanwälte
Eurojuris España, intenationales Netzwerk von Anwaltskanzleien

European Order for Payment Procedure (EOPP)

Regulation EU 1896/2006

In response to the perceived need for a uniform or harmonized procedure to obtain a judicial decision for the recovery of uncontested claims within the EU, Regulation 1896/2006 was enacted in December 2006 to create a first “uniform European procedure for civil disputes”.

The Procedure applies to all European Union Member States, with the exception of Denmark and deals specifically with “cross-border cases”. Article 3 of the Regulation defines a cross-border case as one, in which at least one of the parties is domiciled or habitually resident in a Member State, other than the Member State of the court seized.

Significantly, this procedure does not require the claimant to be a European resident (Article 7.5), and makes it possible to obtain a quick decision enforceable through the whole of Europe.

Article 7(e) of the Regulation does not require documentary evidence to accompany the application, only a “description of evidence”, this is to avoid high translation costs and to make the process more efficient as the debts that the EOPP generally deals with are not disputed.

However, a claim does not have to be uncontested to be made through this Procedure. A claim will only be determined as being uncontested during the procedure by the silence of the defendant who does not contest the claim after receiving a payment order. Finally, of note is the fact that there is no ceiling for the amount that can be claimed.

Procedure

• The regulation includes a form, Standard Form A set out in Annex I, to be used to apply for a European order for payment. A pecuniary claim must be for a specific amount that has fallen due at the time when the application for a European Order for Payment is submitted. This form can be submitted by post or even electronically.

• The procedure is based on the use of standard forms for communication between the court and the parties, in order to facilitate its administration and enable the use of automatic data processing. According to Article 1(a) of the Regulation the purpose of the EOPP is to simplify, speed up and reduce the costs of litigation in cross-border cases concerning uncontested pecuniary claims. Another purpose is to permit the free circulation of European orders, throughout the Member States, by laying down minimum standards.

• Once the order is issued in accordance with article 12, which is usually within 30 days of the lodging of the application, it is served on the defendant in accordance with national law by a method that has to meet the minimum standards laid down in articles 13, 14 and 15.

• The defendant may then, within 30 days, lodge a statement of opposition to the EOPP with the court of origin, using standard form F, which is be supplied to him together with the order for payment (Article 16). As opposed to normal procedural rules, the burden to initiate adversarial proceedings rests with the defendant.

• If he does lodge a statement of opposition, the proceedings continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure of that state. If he does not do so, the court of origin will declare the European Order for Payment enforceable using standard form G (Article 18).

• After that, the order must be recognized and enforced in the other Member States, without the need for a declaration of enforceability, and without any possibility of opposing its recognition.

European Small Claims Procedure (ESCP)

The European Small Claims Procedure (ESCP) was introduced by means of Regulation (EC) No 861/2007 of The European Parliament and of The Council of 11 July 2007. According to the Regulation, the objective of such a procedure is to facilitate access to justice, and to simplify and speed up litigation concerning small claims in cross-border cases whilst reducing costs.

It created for the first time in Europe a uniform, speedy and affordable means of debt recovery for low value claims in cross border cases for consumers and businesses. The European Small Claims procedure came into effect in all Member States, with the exception of Denmark, from 1 January 2009. Petitioners in any of the EU’s member states can use the procedure to take action against a business they have dealt with in any of the other EU countries.

As with the EOPP detailed above, the European Small Claims Procedure (ESCP) operates on the basis of standard forms. It is set up as a written procedure unless an oral hearing is considered necessary by the court. The Regulation provides for four standard forms and establishes time limits for the parties and for the court in order to speed up litigation.

Also, as with the EOPP, the European Small Claims Procedure (ESCP) applies only to cross-border cases, that is, cases in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court where the action is brought. Domicile is determined in accordance with Articles 59 and 60 of EC Regulation No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

In practice what the EU has introduced is a standardised procedure to be used by all participating court systems. It was created in response the need for Community legislation that guarantees a level playing-field for creditors and debtors throughout the European Union . For claims under €2,000, (excluding all interest, expenses and outlays) a petitioner can fill in a claim form and send it to the court system of their Member State of residence. This saves the applicant from having to take action in foreign courts in foreign languages.

Procedure

• The claim is commenced by filling in standard claim Form A, as set out in Annex I, and lodging it with the court or tribunal with jurisdiction directly, by post or by any other means of communication .

• The claim form should include a description of the evidence supporting the claim and be accompanied, where appropriate, by any relevant supporting documents. The claim form, the response, any counterclaim, any response to a counterclaim and any description of relevant supporting documents must be submitted in the language of the court or tribunal.

• Where the court or tribunal considers the information provided by the claimant is inadequate or insufficiently clear or if the claim form is not filled in properly, it will give the claimant the opportunity to complete or rectify the claim form or to supply supplementary information or documents or ultimately to withdraw the claim.

• A copy of the claim form, and, where applicable, of the supporting documents, together with the answer form is then served on the defendant in within 14 days.

• Any counterclaim is submitted using standard Form A, and any relevant supporting documents should accompany the counter claim on the claimant within, again, 14 days of receipt. The claimant then has 30 days to respond to any counterclaim.

• If the court agrees that it is appropriate to use the small claims procedure it will give the defendant 30 days in which to respond. It will then make its ruling within 30 days. The court can also:

(a) demand further details concerning the claim from the parties within a specified period of time, not exceeding 30 days;

(b) take evidence in accordance with Article 9; or

(c) summon the parties to an oral hearing to be held within 30 days of the summons.

Enforcement

This Regulation was introduced with the objective of making it simpler to obtain the recognition and enforcement of a judgment given in the European Small Claims Procedure in another Member State. It provides for the enforcement of decisions in any of the member states without the need to go through the formal process of seeking mutual recognition of judgments (exequatur).

The enforcement procedures are governed by the law of the Member State of enforcement. A judgment delivered in a European Small Claims Procedure is enforced under the same conditions as a judgment handed down in the Member State in which it is to be enforced. Under no circumstances may the judgment be reviewed as to its substance in the Member State of enforcement.

Costs

The costs of the proceedings are borne by the unsuccessful party. As stated, purpose of this regulation was to better facilitate access to justice, because of this the regulation provides that the principles of simplicity, speed and proportionality should be kept in mind by the court when making any decisions in relation to costs. The regulation also provides that the details of the costs to be charged must be made public and the means of setting any such costs be transparent.

Conclusion

As can be seen from the above the EOPP and ESCP were introduced to create a simplified system for uncontested claims without having to make application to a foreign court. For both procedures representation by a lawyer or any legal professional is not mandatory. It is also important to emphasise that these procedures are in addition to and not in place of the existing national procedures for debt recovery.

Although there has been some reported use of the EOPP the potential and utility of these new procedures remains to be seen. The procedures do not appear to be used that frequently or appear to be widely known. Time will tell whether they will become a cornerstone of European Union civil debt recovery.

Mariscal Abogados
Eurojuris España, international network of Spanish law firms

Turkey posts 8.2 % growth in 3rd quarter 

According to the Turkish Statistics Institute (TurkStat), Turkey’s gross domestic product (GDP) expanded by 8.2% in the July-September period, marking the eighth quarter in a row in which the country’s economy has grown. The third quarter growth rate was way beyond the market expectation of 6.3 %. “That much expansion made us the second-fastest growing economy worldwide, after China, in the third quarter. We expect our economy to grow no less than 4% next year,” said the Industry, Science and Technology Minister Nihat Ergün. With this latest announcement, the country’s economic growth rate for the first three quarters of this year was ascertained at 9.6 %. For Gökhan Uskuay, director of Strategies at Global Securities in İstanbul, the third quarter economic growth eased worries surrounding the health of the Turkish economy next year. EFG İstanbul Securities Chief Economist Haluk Bürümcekçi said the third quarter economic growth indicated that Turkey’s economy will grow beyond expectations this year. “What was different in the third quarter was that we had a foreign trade surplus this time, whereas the overseas demand always used to be decreasing the economic growth in Turkey as it produced a foreign trade deficit. This is important because it means the domestic demand has dropped more than the overseas demand. This is something [the Turkish government and central bank] aimed to achieve. There is a slight slowdown in both consumption and investments. These drops will be more visible in the last quarter, but Turkey will end this year with a strong growth,” he said. (Today´s Zaman, 13/12/2011)

WSJ: Turkey, Eurasia’s rising tiger

An article by the US finance daily The Wall Street Journal’s (WSJ) drew attention to the country’s success at a time of financial and political turmoil in its region. The newspaper echoed a previous article on Turkey’s first quarter growth, when it had likened the country to a “rising tiger”. The recent article cited Turkey’s underscoring of its well-deserved reputation by achieving its tenth successive quarterly expansion. Providing opinions of market analysts and economists, “Turkey’s growth resembles Asian-style growth dynamics,” the article read, describing the country’s 9.6 % growth in the first nine months of the year: the world’s highest for the period. Turkey grew over 8.9 % in 2010, becoming one of the fastest growing economies in the world. The country has also achieved very high rates of growth in the first and second quarters of 2011, 11.6 % and 8.8 %, respectively.  (Hurriyet, 14/12/2011)

BRIC inventor: Turkey among most influential countries of the next decade  

The Chairman of Goldman Sachs Asset Management, and the inventor of the term BRIC, Jim O’Neill, has predicted that BRICs have left their best days behind and that the next decade will see another set of emerging powers, including Turkey, taking over. According to an interview he gave to Deutsche Welle, O’Neill expects the world’s growth map to change considerably in the next ten years. “If a new G-8 (Group of 8 - the world’s most industrialized nations) was to be formed today by judging the countries’ economic standing in place of political influence, I would recommend adding Mexico, Indonesia, South Korea and Turkey alongside the BRICs for that organization,” said O’Neill. “Turkey will be one of the most influential states of the next decade in terms of its contribution to the global economy. Istanbul is one of the most exciting and interesting cities of Europe, if not the world,” he said, adding that European nations must be in favor of Turkey’s EU accession.  (Aksam, 29/12/2011)

Frost & Sullivan: Turkey, key in global growth in 2012 

Turkey will be playing a key role in global growth plans in the new year, according to research and consultancy company Frost & Sullivan’s Turkey Director Philipp Reuter. Turkish companies are expected to form highly advantageous partnership deals, said Reuter in a report forecasting Turkey’s economic performance in 2012. “Turkey has been successful in variety of sectors including, automotive, defense and renewable energy despite the financial volatility throughout 2011, Reuter’s written analysis read. The automotive industry had important sector-specific foundations laid in 2011 and demand is likely to be high for suppliers in 2012. The country’s renewable energy sector reached a critical milestone in 2011, and could be an important factor in driving 2012’s growth, while Turkey’s defense-related programs have also been getting increased attention from foreign investors. The re-emergence of the country’s textile industry has helped the retail sector’s consistent growth, the report cited. These developments may lead to Turkish professionals working abroad to head back home, and take up high level positions in local companies, in effect meaning the wage structure and purchasing power in Turkey reaching that of the developed countries.  (Zaman, 27/12/2011)

Turkey’s automotive production exceeds 1 million in 11 months

Automotive plants in Turkey produced 1,084,000 motor vehicles in 11 months, according to data from the Turkish Automotive Manufacturers Association (OSD), while the number of passenger cars produced in the country has reached 589,000. Total vehicle production increase averaged at 10% when compared with January-November of 2010. Turkey exported 708,000 of the motor vehicles it produced in the said period, 407,000 of them passenger cars. (Hurriyet, 12/12/2011)

Foreign automakers to invest more in Turkey 

Many foreign auto manufacturers, like Ford, Nissan and Toyota are increasing their investments in the Turkish market in 2012, following a record-breaking year in sales and exports. US auto giant Ford plans to invest USD 1 billion in its Turkish facilities in 2012, said Turkey’s Science, Industry and Technology Minister Nihat Ergün. In addition to Ford, Ergün said Japanese Toyota and Nissan also have investments in the pipeline.  (Hurriyet Daily News, 28/12/2011)

Turkish-manufactured Corolla to assist Toyota’s global growth 

Toyota’s newly announced investment plans in Turkey to produce its popular sedan Corolla will help the Japanese car maker recover from a series of crises and disasters it has had to face in the last three years. The tag lines “Reborn” and “Fun to drive, again” in the ad campaign reflect the new strategy of Toyota, according to CEO Akio Toyoda, speaking to the press at this year’s Tokyo Motor Show in Japan. Toyota’s Turkish plant will be used effectively to help the company’s global growth, he said. The company will begin producing the new Corolla model in its Sakarya plant in northwestern Turkey in 2013. The plant’s capacity will increase to 210,000 cars per year with the new model. Toyota will invest about EUR 150 million in the plant for the new model, creating 400 new jobs.  (Hurriyet, 5/12/2011)

“Made in Turkey” Honda Civic to debut in January 2012 

Japanese car maker Honda has begun the production of the new Civic Sedan in its Sekerpinar plant in Turkey’s northwestern province of Kocaeli. The new model will hit the road in the first month of the new year. Sedans have been strong sellers in Turkey as Turkish car buyers overwhelmingly prefer 4-door family cars. The only car produced in Honda’s Turkish factory, the new model will also be exported to European markets. Honda aims to sell 15,000 cars in the Turkish market this year and to raise the number to 20,000 in 2012.  (Zaman, 20/12/2011)

Turkish car market to finish 2011 among top 5 in Europe 

Set to reach an annual sales figure of 900,000 cars at the end of the year, the Turkish automotive market is likely to close the year as the 5^th biggest in Europe. The industry received over USD 10 billion of investments in the last decade, resulting in production levels hitting 1.2 million units in 2011, up from 271,000 in 2001. Exports of the automotive sector have also quadrupled to 825,000 units in 2011, up from 2001’s 202,000, accounting for some USD 20 billion of the country’s expected total of USD 135 billion volume in exports. 2010 exports of the automotive industry stood at USD 17.4 billion. Rising prosperity on the back of the record-breaking economic growth, -Turkey has grown 10.2 % in the first half of the year- and low vehicle-per-capita rate, the country is one of the most promising in Europe. Standing 6^th behind Spain in automotive sales as of November, Turkey is expected to finish the year as the 5^th, as Turkey’s car market sees strong activity at the end of the year, while sales figures have been dropping in Spain. The Turkish automotive industry aims to reach a 2 million-unit production capacity within the next 4-5 years, a goal shared by the government and the auto makers, hoping to export 1.5 million of its production. (Hurriyet, 26/12/2011)

FEV Group opens Turkey office 

German power train and motor vehicle technologies developer FEV Group has entered the Turkish market in a bid to take part in Turkey’s national car project and the country’s growing automotive industry. Announced by the Investment Support and Promotion Agency of Turkey (ISPAT) President Ilker Ayci, the Aachen-based company’s entry to the country is strategically important due to its technology and know-how transfer potential to the local automotive industry. Fuelled by rising income levels and booming car sales, Turkey aims to create a national automotive brand that could be marketed both domestically and internationally. The country ranks 16^th in global automotive production and is home to manufacturing plants of Ford, Toyota, Honda, Hyundai, Fiat and Renault. (Yeni Safak, 2/12/2011)

Aditya Birla to set up a USD 510 million VSF plant in Turkey 

India’s Aditya Birla Group, the world’s leading producer of Viscose Staple Fiber (VSF), is to establish a production plant in southern Turkey, investing USD 510 million over a period of five years. The new plant to be located in the Adana Organized Industrial Zone in the province of Adana will have a capacity of 180,000 MT per annum, and is expected to be operational by 2014. 550 new jobs will be created with the investment. Announced by Turkey’s Minister of Economy Zafer Caglayan, the Investment Support and Promotion Agency of Turkey (ISPAT) President Ilker Ayci and Aditya Birla Group Board Member K.K. Maheshwari with a joint press conference in held Istanbul, the plant will not only meet Turkey’s domestic VSF need for its textiles industry, but will also make the country an exporter of the strategic material. “ISPAT helped Aditya Birla’s investment decision at every stage,” ISPAT President Ayci told reporters during the announcement, adding that the Agency would be ready to assist the company’s future investments in Turkey. (Hurriyet, 30/12/2011)

Dow-Aksa Akrilik sign USD 1 billion JV deal for carbon fiber production

Dow Europe, the European unit of the US-based chemicals manufacturer Dow Chemical, and Turkish synthetic fiber maker Aksa Akrilik have joined forces to set up a partnership to produce carbon fiber, a key substance mainly used in the automotive, construction and aerospace industries. The 50-50 partnership will invest USD 1 billion in Aksa’s Yalova plant in northwestern Turkey, creating 1,000 new jobs. The JV agreement includes both developing and marketing of carbon fiber products and technical services for the composites industry. “The initial amount of investment, calculated to be around USD 500 million, has been increased to USD 1 billion with the Prime Minister Recep Tayyip Erdogan’s personal involvement,” Minister Ergun said at the ceremony. US companies have invested USD 650 million in Turkey in January-November of 2011, an increase of 147 % over the last year.  (Milliyet/Sabah, 21/12/2011)

Turkey reaches 2011 goal in tourism with 30 million visitors  

2011 has been a prospering year in Turkey’s tourism as the number of foreign visitors to the country hit 30 million and revenue from the so-called the industry without a chimney reached USD 25 billion. The closing year’s resounding success has placed Turkey in the 7^th rank of the world’s most popular tourist destinations, and the 9^th in the list of tourism revenues by country. The 10% growth rate over 2010 and 629,000 bed capacity have set even higher expectations from the new year. The country aims to attract at least 32 million foreign visitors, which are expected to spend some USD 27 billion in 2012.  (Milliyet, 27/12/2011)

Jumeirah to run historic hotel in Istanbul 

The UAE’s Jumeriah Group, the largest luxury hotel company of the Middle East, has signed a deal to run Pera Palas in Istanbul’s Beyoglu district. Beginning in 2012, the oldest luxury hotel in Istanbul will be managed by the Jumeriah, known for its 7-star Burj Al Arab hotel in Dubai. The group has also submitted a bid to run another projected hotel to be built as part of a residence and shopping mall complex in Eyup, Istanbul.  (Sabah, 29/12/2011)

Turkey’s exports reach historic high 

Turkey’s exports in 2011 have reached USD 133.9 billion, creating a new benchmark in the country’s export figures, the country’s Minister of Economy Zafer Caglayan announced. “Turkey reached the highest level of exports in its history as of Thursday,” said Caglayan at a conference organized by the Turkish Exporters Assembly (TIM). “The increase in our exports in the last decade is phenomenal. From 2002’s USD 36 billion to today’s 133.9 billion, Turkey has achieved a success many cannot even dream of,” Caglayan added. Turkey’s economy has expanded 10.2 % in the first half, while exports went up by 20 %, he said. (Turkiye, 9/12/2011)

Industrial production hits 7-year-high in October 

Turkey’s industrial production rose by 7.3% in October, over the same month of 2010, the Turkish Statistical Institute (TurkStat) reported. The highest increase in industrial production was seen in capital goods production with 8.9% in October, compared to the same month of 2010, followed by the production of durable consumer goods with 8.2%, the production of intermediate goods with 8%, and energy production with 6 %, while the production of non-durable goods also increased by 6% in the given period.  (Zaman, 9/12/2011)

Turkish-Azeri joint pipeline to carry Shah Deniz gas to Europe 

Turkey’s strategic position as an energy corridor between oil and gas producing countries in the East and consumers in the West will gain considerable strength with the projected Trans Anadolu (Trans Anatolian Pipeline project - TANAP), designed to carry gas from Azerbaijan’s Shaz Deniz field to Europe. The USD 5 billion project will be completed by 2017 according to the memorandum signed by the Turkish Minister for Energy and Natural Resources Taner Yildiz, and Azerbaijani Minister for Industry and Energy Natig Aliyev.  The pipeline will stretch from Turkey’s eastern to its western border, guaranteeing the export of gas from the Shah Deniz field in the Caspian Lake to Europe through Turkish territory. Turkey’s state-owned oil and gas distribution companies, TPAO and BOTAS will partner with Azeri SOCAR in the consortium to build the pipeline. The project will be open to international participation in its second stage. (Sabah, 26/12/2011)

Huawei sets Turkey as regional center, plans fast growth 

Turkey is the regional center for Chinese network solutions provider Huawei’s global plans to become a top supplier of smart phones and tablet PCs. Already a key equipment producer for the world’s largest wireless network operators, the Chinese company aims for growth in new areas like handset production and home technologies. Huawei also plans to take part in Turkey’s high-tech education program, the Fatih Project, and state-owned gas pipeline operator BOTAS’ energy projects. (Sabah, 12/12/2011)

Turkey’s Fatih Project an investment in future, Rim CEO Lazaridis says 

Turkey’s high-tech education endeavor, the Fatih Project is an investment in the future, according to the founder and CEO of Canadian mobile equipment producer Research in Motion (RIM), famous for its Blackberry handsets. “Taking education to a higher level using high-tech means a future proof investment,” said Mike Lazaridis at the Turkish Innovation Conference organized by the Turkish Exporters’ Assembly (TIM) that took place in his birthplace, Istanbul. “Turkey remains at the forefront of putting mobile technologies to good use. RIM’s mobile banking application was first used by a Turkish bank,” as Lazaridis described the fast adaptation of the latest mobile technologies by Turkey’s young and dynamic population. “The focus on innovation and education inspires confidence in Turkey’s future. That is why I am here today,” he noted. The USD 7.5 billion Fatih Project envisions the distribution of millions of tablet PCs for primary education students all over Turkey. Turkey aims to procure the tablet PCs and other high-tech education equipment locally, through partnership between Turkish and foreign companies.  (Milliyet, 8/12/2011)

Amazon invests in Turkish online florist

The Seattle-based e-commerce giant Amazon has entered the Turkish market by acquiring stakes in the online flower delivery company Ciceksepeti.com. The world’s largest e-retailer’s minority partnership in Ciceksepeti.com will help the Turkish start-up grow its giftware business. “Stakes in Turkish internet companies proved popular among foreign investors in 2011, as the country’s e-commerce volume reached USD 10.5 billion in the first 11 months of 2011. (Hurriyet, 22/12/2011)

Pfizer to manage 20 countries from its Turkey office 

Pharmaceutical giant Pfizer will run its Caucasus, Central Asian and Eastern European operations from its regional head office in Turkey. According to a statement by the US-based company, the CauCar (Caucasus and the Central Asia) Regional Manager Berk Gurdogan’s area of responsibility is extended to cover 10 new countries in Eastern Europe. Following the appointment, Pfizer Turkey will be managing a total of 20 countries including Romania, Croatia, Bulgaria, Ukraine, Lithuania and Belarus. In recent years, Turkey has become a global and regional hub for major multinational companies in management, production, and distribution. In addition to Pfizer, Coca-Cola, Intel, Microsoft, BP, BSH and others also manage their regional operations from their Turkish units, employing Turkish executives.  (Dunya, 16/12/2011)

Turkish hospital chain acquired by Malaysian fund 

The owner of Turkey’s largest private hospital chain, the Acibadem Group, has reached a deal with Integrated Healthcare Holding (IHH) of Malaysian sovereign fund Khazanah Nasional for the sale of its majority stakes. Turkey’s healthcare sector in recent years has witnessed other significant partnerships and buyouts, attracting investors from both the West and East. The world’s second largest equity investor, US-based Carlyle Group, bought shares in Medical Healthcare, owner of Medical Park hospital chain in 2009, while in last May, Universal Healthcare Group’s 26 % shares were acquired by the trio of Hong Kong-based Asia Debt Management Capital, Dutch PGGM NV and the World Bank’s International Finance Corp. for USD 140 million. Another notable investment in Turkey’s healthcare industry had been last year’s 40 % share acquisition of Memorial Healthcare Group by Argus Capital Partners and Qatar First Investment Bank.  (Milliyet/Hurriyet, 15/12/2011)

Turkey a reminder of growth and stability, Henkel CEO says 

 Recession-proof economies like Turkey’s will drive many multinational companies’ growth in 2012, according to the CEO of Henkel, German maker of home cleaning and personal care products. Turkey remains one of our fastest growing markets, with an expected rate of 22% for this year. Our global growth will continue on the back of high performing economies, meaning more dependency on Turkey, Kasper Rorsted told reporters at a press meeting in Istanbul. Rising per capita income directly affects the expenditure on consumer products, said Henkel CEO, adding that Turkey’s reputation is that of a fast growing, prosperous, stable country with a bright future. Henkel has three manufacturing plants in Turkey, accounting for 80 % of the company’s marketed products in the country.  (Hurriyet, 7/12/2011)

US Vice President: Turkey to be among top 10 economies in the world by 2023 

Turkey’s much touted entrepreneurial spirit, combined with the benefits of a high performing economy, is set to place the country among the world’s top economies by 2023. On a visit to Turkey, the US Vice President addressed a group of businesspeople at the second Global Entrepreneurship Summit in Istanbul, praising Turkey’s economic achievements in the last decade, such as tripling the size of the economy, record breaking exports, and increasing per capita income. Turkey is one of the key economies of the world, and is in the position to realize its potential, Biden added, speaking of Turkey’s goal to enter the top 10 economies of the world by 2023, the centennial of the Republic. (Hurriyet, 5/12/2011)

An ordinary person takes only very few times during his life the decision to buy or sell a property. However, there seems to be no awareness in the society that, before making this fundamental decision is wise to consult with an attorney. All the contrary, the general idea is that one should only go to a lawyer to solve legal problems and not, as it should be, to try to avoid them. That is why we lawyers often find customers that come to our office once they have already signed a contract, thinking that with a magic wand we can resolve a problematic situation, which would never have happened if they had consulted us on time.
Among the professionals involved in the decision making of a real estate purchase contract, the lawyer is the only one who can give advice with the warranty that this is only his role and that is why he gets paid, with the absolute independence of the one who knows that is going to collect his fees whether the operation is performed or not. In short, the lawyer is the only professional who can calmly tell his customer: do not sign! That’s why taking advice from a lawyer before signing a contract for purchase and sale of real estate is essential and the sooner you come to him, the better.

In real estate market intermediaries tend to avoid the intervention of lawyers, because they think it increases the costs of the transaction and therefore it reduces their room for maneuver. But the reality is quite the opposite: the costs of our intervention are very profitable. We can actually give many examples of real estate transactions that would have failed if there had not been an immediate intervention of lawyers. The most common problems that we solve are:

• problems with the matrimonial regime applicable
• a necessary formalization of an acceptance of inheritance,
• buildings awaiting a declaration of new construction (even if they have been legal built, but not registered)
• fiscal and money laundering control problems specific to non-resident sellers or non-resident buyers,
• special powers necessary to formalize the operation, when the contract parties cannot be present at the formalization of the purchase contract…

But the range of possibilities is enormous and each of these issues can cripple sales management until making it impossible, especially at the present time, because of the lack of buyers and the oversupply of housing available to the market. Furthermore, experience in international operations with nonresident buyers or nonresident sellers is at the moment crucial, as the housing market mainly offers its stock to potential foreign buyers from countries increasing their capacity and interest in purchasing property in Spain (Russians, Swiss, Indian, Chinese, etc.)…

The failure of a real estate transaction means for the real estate brokers involved an effective cost in time, dedication, displacements and risk analysis, and these costs have no compensation if the operation is not actually performed. The causes of such a failure are often legal issues that only an attorney skilled in the art would have foreseen early enough to provide possible solutions and avoid the loss of the buyer. Or, if not feasible any of the proposed solutions, the lawyer could advise to abandon the operation on time, before incurring further unnecessary costs. Working with real estate agents or other intermediaries in the housing market is an important opportunity for business and the synergies it generates are very helpful both for lawyers and for the agencies involved, providing their common customer the benefit to be able to buy or to sell with guarantees and to mature his decision with all the necessary information.

Carlos Prieto Cid
Tarracoiuris Abogados
Eurojuris España, international network of law firms

In Spain foreign judgments are recognized based on bilateral or multilateral treaties or understandings. Within the European Union, Enforcement of Judgments is covered by Regulation EC 44/2001 and EC 1346/2000 for insolvency proceedings. Outside of the EU the main international organisations concerned with developing and harmonization of these rules are the International Institute for the Unification of Private Law (UNIDROIT), the Hague Conference on Private International Law (HCCH or Hague Conference), and United Nations Commission on International Trade Law (UNCITRAL).

What does enforcement mean in civil and commercial matters?

Enforcing a court decision means complying with and obtaining the full right gained by the party that won the dispute. This may involve a request by a plaintiff for the return of a certain amount of money, the right to ask a defendant to do something or to refrain from doing something, or a request to have a right recognised by registration in public registries.

When trying to enforce a foreign judgment in Spain a specific set of rules and procedures apply. The law which governs this procedure varies depending on the origin of the judgment, whether it was from a state within the European Union or from another foreign court.

European Union

The rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in European Union (EU) countries is covered by Regulation no. 44/2001 adopted by the council of the European Community on the 22 December 2000. The Regulation

“… lays down uniform rules to settle conflicts of jurisdiction and facilitate the free circulation of judgments, court settlements and authentic instruments in the European Union.”

The Regulation provides that a judgment given in an EU country is to be recognised without special proceedings, unless the application for recognition is contested. A declaration that a foreign judgment is enforceable is to be issued following purely formal checks of the documents supplied. The regulation lists grounds for non-enforcement however, courts are not permitted to raise these of their own motion.

The Regulation further defines “Judgment” as any judgment given by a court or tribunal of an EU country, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance.

It is important to note that the regulation does not cover revenue, customs or administrative matters. Neither does it apply to:

• the status or legal capacity of natural persons, matrimonial matters, wills and succession;

• bankruptcy; (but does it apply to other charges)

• social security;

• arbitration.

Regulation 1346/2000 Insolvency Proceedings

This regulation establishes a common framework for insolvency proceedings in the European Union (EU) and has been incorporated into Spanish Law my means of the Insolvency Act (Ley Concursal). Its purpose regarding insolvency proceedings is to avoid assets or judicial proceedings from being transferred from one EU country to another in order to obtain a more favourable legal position to the detriment of creditors (i.e. “forum shopping”).

The regulation also provides for the automatic recognition of individual member state insolvency proceedings within the EU. Decisions by the court with jurisdiction for the main insolvency proceedings are to be recognised immediately in other EU countries without further scrutiny. The applicable jurisdiction for insolvency proceedings as provided by the regulation is the court of the member state where the debtor’s centre of main interests is located. However, restrictions on creditors’ rights (a stay or discharge) are possible only if the creditor has consented.

The regulation does not apply to entities with a centre of main interests outside of the European Union. The extent to which insolvency proceedings from outside of the European Union are recognised will depend on the domestic legislation and practice of each particular member state.

Procedure

• If the judgment required to be enforced in Spain is the decision of a court within the European Union application must be made to the relevant court for a declaration that the foreign judgment is enforceable in Spain (exequatur).

• The declaration of enforceability (”exequatur”) must be issued after certain formalities have been completed and must be served on the other party, who may only challenge it in the courts;

• It is possible that recognition of a foreign judgment may be refused if recognition would be contrary to public policy, irreconcilable with an earlier judgment, where the document initiating the proceeding has not been served in good time or the other party does not appear.

• Spanish law requires that all judicial decisions be notified to the other party prior to enforcement. This is in order to leave open the possibility for appeal or reaching an agreement without the need for enforcing the judgment.

These procedures can be quite complicated and it is always advisable to make the application for enforcement through a lawyer or any other legal professional.

Outside the European Union including USA

Spanish law regulates the recognition and enforcement of foreign judgments from non-European Union member countries in Articles 951-958 of the Code of Civil Procedure (Ley de Enjuiciamiento Civil). In order to execute a judgment in Spain application must be made in the appropriate jurisdiction within Spain.

Rules of jurisdiction

The basic principle of jurisdiction exercised in Spain is that it is determined on the basis of the country in which the defendant is domiciled, regardless of their nationality. In relation to judgments from countries outside the European Union Spain follows The Hague Convention (which came into force in Spain on 3 April 1997) which provides that the Courts of First Instance have jurisdiction over defendants whose domicile or place of residence is located within its territory.

Again, the applicant party will have to submit a written request for recognition or “exequatur” before the courts in Spain. The exequatur process consists of a review by a court to determine if the request for recognition meets the requirements established by Spanish law.

However, the judge may only examine the substance of the foreign judgment to ascertain whether or not it may be enforced in accordance with Spanish law. Article 954 of the Code of Civil Procedure establishes the specific legal requirements for recognition:

• the execution has been issued in pursuit of a personal action “acción personal”. The judgment must not affect the ownership of real property located in Spanish territory.

• the defendant must have been summoned properly before the court at the trial .

• That enforcement of the judgment must not be contrary to Public Policy.

It is always advisable to translate the judicial decision into Spanish. However, it is important to note that the other party can challenge a normal translation and, even though it is not strictly necessary, a sworn translation will be required. An Apostille is required most of the time.

Although you can make an application through the Spanish Ministry of Justice or the consulate, the most efficient and convenient method is to make the application for recognition through a lawyer in Spain.

Enforcement

Once the designated competent Spanish court approves the foreign judgement the enforcement procedure can commence. According to article 545 of the Spanish Civil Procedure Act the same court that recognises the foreign judgement is responsible for its enforcement.

The steps of the enforcement procedure will vary with the type of judgement. In case of judicial monetary claims the Spanish court will grant a period of 10 days to allow the defendant to oppose the enforcement of the judgment on the grounds established in Articles 556 and 559 of the Spanish Civil Procedure Act (which provide for prescription, payment or settlement and lack of capacity). At the end of the 10 day period the applicant then has a further 5 days to respond to the defendant´s objections. The Court will then deliver a final judgment ordering the enforcement of the judgment or dismissing the application.

Perhaps an important note at this point is, as detailed above the determination of jurisdiction in international disputes and the recognition and enforcement of foreign judgments can be a complicated and lengthy process. Best Practice therefore would be to ensure that jurisdiction and applicable law in the event of a dispute should be agreed to in detail by the parties to any cross-border agreements.

Mariscal Abogados
Eurojuris España, international network of Spanish law firms

In order for the creditor to begin the process, the debt must not have to been accrued in the 6 months previous to the presentation of the request and the creditor must be solely entitled to the debt. 

Involuntary (necessary) bankruptcy may also be commenced by the partners or board members of a legal entity, who are personally liable for the debts.  (3.3 Bankruptcy Act)

To initiate an involuntary (necessary) bankruptcy the application should be based on any of the acts lawfully prescribed by the Bankruptcy Act for this purpose.  These requirements are detailed in the Exposition of Motives II, which are “based on any of the facts … which allege insolvency as prescribed in the Act”.

It should be pointed out that to initiate aninvoluntary (necessary) bankruptcy the burden of proof lies with the creditor, requiring him to include in the initial application all the evidence available to him supporting his claim.   He must also prove his position as a creditor and any of the facts described in Article 2.4 of the Bankruptcy Act, namely the failure on the part of the debtor to pay:

-      Tax obligations payable during the three months previous to the application for Liquidation. 

-      Social security payments and other contributions during the same period

-      Wages, allowances and other benefits arising from labor relations for the previous three months.

Once the request for bankruptcy is presented to the Judge can:

1. Decide the application is complete:  the Judge on the same day or by the latest the following day, can dictate a decry of automatic admission of the application.  If there are defects in the application the Committal will still take effect following the rectification of any defects within a maximum of 5 days. 

At this point the judge will send a summons to the debtor, along with the application for bankruptcy, requesting that he appear before him in a maximum of 5 days.  The debtor can oppose the application but it must be done in the manner prescribed and offering the proofs that he deems support his opposition. 

The evidence of witnesses is not enough to prove the facts alleged by the creditor

It should be advised that at this point that it is possible that the creditor or any other person with a legitimate interest can request the judge to adopt Precautionary Measures to secure the assets of the debtor. To this end the judge can require the creditor to pay a bond to the court to indemnify the debtor against any prejudice or damages that the Precautionary Measures may cause.  

2. Find the Documentation inadequate.  If the paperwork or the application for a declaration of bankruptcy is defective and the creditor does not rectify it within 5 days, the Judge can dictate a decry of automatic in-admission of the application.  However, it is possible to appeal this decision.

3. Find acquiescence or inactivity on the  part of the debtor.   Bankruptcy will be declared without holding a hearing or an examination of evidence attesting to the state of insolvency of the debtor (Article 18.1 Bankruptcy Act).  This process then follows the same course as for a Voluntary Creditor´s Bankruptcy, when it is instigated by an insolvent debtor.

4. If the debtor disputes the application:  the debtor must present his opposition in writing within 5 days of the summons and base it on the following facts: 

-      Non-existence of the facts (detailed in Article 2.4 of the Bankruptcy Act)

-      Existence of the facts but not insolvency

-      The debtor must prove his solvency and he must also show his books of accounts to the court

The Bankruptcy Act defines insolvency of the debtor as the inability to pay debts.  What is relevant for the purposes of declaration of insolvency is that the debtor is in a situation that cannot pay his debts as they fall due. 

5. In case ofnon-appearance of thecreditor, orthe appearance and failure of corroboration of his opposition: if the judge finds that the objective facts prescribed by the Bankruptcy Act exist and that there are other possible creditors he will call a hearing of the other creditors before deciding on the application. 

Once the involuntary (necessary) bankruptcy has been declared, the debtor´s powers of administration and disposition of its assets are suspended and transferred to the appointed Administrators of Bankruptcy.

Finally, it must be highlighted that although it is true that the law in Article 3.1 states that the request for a declaration of bankruptcy can be made by a single creditor, for the declaration of the necessary budget multiple creditors are required. If there are not multiple creditors at the time of the request, the judge can deny the commencement the insolvency process. 

Monika Bertram
Mariscal Abogados
Member of Eurojuris España
 

Disclaimer: This article does not constitute legal advice

Incoterms rules were first published in 1936 by the International Chamber of Commerce and in general are reviewed every 10 years. The most recent revision took place in 2010, therefore the purpose of this article is to detail the recommendations brought about as a result of that revision.

There are five revisions worth highlighting:

Firstly, of note is the elimination of four terms and the creation of two new terms, bringing the number of Incoterms to eleven. However, the rules allow for their continued use despite their elimination.

The terms eliminated are the following:

DAF: It is understood that the seller will deliver the goods to the buyer when the goods are delivered at a border, but the seller does not have to unload the merchandise.

This term is used regardless of the means of transport used, provided that the goods are delivered at a land border.

DES: The seller delivers the goods when they are made available to the buyer on board the ship. This term is only used when delivery of the goods is made on board a ship at the port of destination and provided that the transport was by sea, by inland waterway or by multimodal transport.

DEQ: The seller delivers the goods when they are made available to the buyer on the quay or wharf of the port of destination. This term is used when the carriage is performed by any of the methods mentioned in the previous term.

DDU: The seller delivers the goods when they are made available to the buyer at the named place, without having been unloaded from their means of transport. This term can be used regardless of the means of transport.

The new terms are: 

DAT (delivered at terminal): This term includes the terms DAF, DES and DEQ. It is used when the seller delivers the goods in a transport infrastructure or terminal

DAP (delivered at place): The seller delivers the goods at a place other than a transport infrastructure or terminal but without unloading them. In this case, the seller bears the costs of unloading the goods.

The second change is that Incoterms 2010 advise and suggest, but do not require, that goods transported in containers use Multipurpose Incoterms rather than Maritime Incoterms.

The third change is in relation to the maritime Incoterms. In Incoterms 2000 the risks passed from the seller to the buyer when the load or the goods passed the ship’s rail. In the new Incoterms the seller passes the risk to the buyer when the merchandise is loaded on to the mode of transportation.

The fourth change is related to security: the rules now explicitly state that the seller is obliged to work with the buyer to get information and manage the relevant documents. This cost is borne by the buyer.

The last change from the old Incoterms, refers to the efforts being made to apply Incoterms to “domestic trade“. The EU is a geographical area with very significant differences, therefore, to use Incoterms to European trade, except the LDP concept concerning taxes resulting from export operations, seems to be a logical progression. This is due, among other things, to the abolition by the U.S. of RAFTD. The International Chamber of Commerce is now making efforts to ensure that American traders use Incoterms between themselves.

Finally, the following recommendations for the use of Incoterms should be highlighted:

-It is recommended to avoid the use of ex-Works (EXW) as it does not allow for adequate control of transport documentation and could lead to fraud, conflict, and so on. In this case, the exporter may have trouble getting the SAD for exportation submitted to customs by the importer.

- It is preferable to indicate precisely the Incoterm used and the place of physical delivery of the goods

- It is advisable to deliver the goods at the place of origin with the FCA term because this information is known. It is preferable to make the goods available to the buyer in the country of destination before passing customs. In the case of an import, you should use term F, while in the case of an export, use term C.

-It is recommended to use “D” Incoterms only for low-risk countries.

- There is always a risk involved in International transportation, therefore, it is recommended to the party assuming the risk to take out an insurance policy.

Marina Bugallal
Mariscal Abogados, Spanish Lawyers Madrid, Spain
Member of Eurojuris España, international network of Spanish law firms

At a state level in Spain, the Act 17/2001, of 7^th of December, of Brands, bestows well-known and renowned trademarks and brand names a preferential treatment. At a European level, this special treatment is granted by the Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks, which refers to the Paris Convention for the Protection of Industrial Property.

The globalized nature of our society and the internationality of the market are undeniable. Industrial Property is inherent in commercial transactions and therefore it is essential that legislators bring all their efforts in getting the greatest harmonization of the various national laws, in order to facilitate the fluent development of interstate commercial relations.

Legislators echoed this need. Thanks to the supranational politic structures created along the 20^th century, this harmonization has been possible in so many fields and particularly in Industrial Property, both at a regional level with the Directive 2008/95/EC and at a superregional level with the Paris Convention for the Protection of Industrial Property, comprising 173 member states from all over the world.

Article 8 of the Spanish Act of Brands is in charge of the protection of “Well-known and Renowned Trademarks and Registered Brand names“.

Before we proceed with the analysis of this article, it would be convenient to highlight that there are two categories of trademarks and brand names that should not be confused: firstly, those considered as well-known and secondly, the so-called renowned. Besides, both well-known and renowned trademarks and brand names need to be registered in order to enjoy the protection granted by this act.

According to the second section of article 8, a well-known trademark or brand name is understood “those that, by their sales volume, duration, intensity or geographic scope of its use, value or prestige gained in the market or any other cause, are generally known by the pertinent sector of the public to who the products, services or activities that distinguish the trademark or brand name, are addressed”. So to speak, the notoriety and fame derives from a series of factors that give popularity to the trademark or brand name exclusively among the target group of those products, services or activities represented by the trademark or brand name. On the other hand, they are considered to be  renowned trademarks or brand names, by virtue of what section third of article 8 establishes as those that “are well-known by the public in general”.

This means that for a trademark or brand name to be renowned, it must enjoy a popularity no longer between a particular sector of consumers, as it was the case of well-known trademarks and brand names, but among the general public, whether or not a targeted consumer of the products, services or activities that represent the trademark or brand name in question.

Depending on whether it is well-known or renowned trademarks or brand names, the law gives them some special protection, established in the first section of article 8: “May not be registered as a trade mark a sign that may be identical or similar to an earlier trademark or brand name, even though the registration is requested for goods or services that are not similar to those protected by such earlier signs, because since these are well-known or renowned in Spain, the use of that trademark might indicate a connection between those goods or services covered by it and the holder of the signs or, in general, when such use made without due cause, may involve an unfair advantage or detriment to the distinctive character or to the notoriety or fame of the earlier signs.”

In this respect, the Act shows, therefore, its particularly protectionist vocation for well-known or renowned trademarks and brand names, in contrast with the treatment bestowed to trademarks and brand names that do not enjoy of notoriety and popularity among the public (articles 6 and 7). Those precepts indicate that trademarks or brand names may not register the signs that represent them if “are identical to a trademark or brand name formerly registered that designates identical products or services” or that “because of the fact of being identical or similar to a former trademark or brand name and being identical or similar the products or services designated, it may exist a risk of confusion among the public; the risk of confusion includes the risk of association with the former brand”. It may be stated, thus, that for those trademarks or brand names that do not enjoy of notoriety or popularity, two cumulative conditions are demanded to prevent the registration of a subsequent sign: the first condition is the identity with the former trademark or brand name, together with the identity of the products or services designated by the brand; the second is that a risk of confusion among the public arises from the combination of the aforementioned identities.

If we analyse and compare carefully articles 6, 7 and 8 we may observe that for the protection of non well-known nor renowned trademarks and brand names the act explicitly demands the total identity of the sign-to-be-registered with the former trademark or brand name. However, with regard to well-known and renowned trademarks and brand names the act only demands that some “identity or similarity” exists. In this regard the Act expands noticeably its protection regarding these privileged well-known and renowned trademarks and brand names.

Furthermore, articles 6 and 7 add another condition to the forementioned one: the risk of confusion among the public, which also includes the risk of association. On the contrary, article 8 does not mention this risk of confusion, which again increases the protection granted to well-known and renowned trademarks and brand names, given that some brand that, for instance, would be identical or similar to a formerly registered one, would find its registration hindered because of the mere evocation of that well-known or renowned brand, even if no risk of confusion or association with the former brand would exist.

Numerous cases have got both to Spanish and European Union courts, regarding the protection of well-known and renowned trademarks and brand names. As an example, it is worth it to quote some of the cases in which the renowned brand Adidas has sued other companies to use signs not composed of three parallel stripes on a background of another colour in contrast to the bands (a sign of their property), but even companies that had registered brands consisting of two or four parallel bands.

Some of these cases are Adidas vs. Jin Matteo (Judgement of the Commercial Court No. 3 in Madrid December 29, 2006, confirmed by the Provincial Court of Madrid on September 26, 2008), Adidas vs. Kaymo (Commercial Court No. 1 of Zaragoza, by Judgement of 31 July 2009, subsequently confirmed by the Provincial Court of Zaragoza on November 27, 2009) or Adidas vs. Marca Mode CV, C&A Nederland CV, H&M Hennes & Mauritz Netherlands BV, Vendex KBB Nederland BV (Judgement of April 10, 2008 before the First Chamber of the Court of Justice of the European Union). In all of those cases Adidas won, being all of those companies that had developed signs of two or four parallel bands ordered to pay compensations worth millions to Adidas.

These cases highlight that with respect to well-known and renowned trademarks and brand names the identity between the signs that represent the brand is not necessary, being sufficient a simple resemblance. This is why in the previously cited cases it was not demanded the three-banded sign, and a two or four-banded sign was enough to notice the similarity, neither it was the identity of products, services or activities that those signs represent (an example of this is the case Adidas vs. Caja General de Ahorros Canarias. This savings bank from the Canary Islands had developed a sign formed by three parallel bands that, even though it imitated the shape of mount Teide, it was later considered by the High Court of Madrid in Judgement of June 13, 2008, as similar to the three-banded one by Adidas. Thus, Caja de Ahorros Canarias had to satisfy the pertinent compensation in favour of Adidas). 

As can be clearly seen in these cases we used as an example, the protection granted by both Spanish courts and the Court of Justice of the European Union towards well-known and renowned brands is effective.

Owing to which, it is important to be extremely cautious when signs that might remind us to well-known or renowned brands are faced. In such cases, it must be taken into consideration that the spanish legal system bestows a special protection to well-known and renowned trademarks and brand names in contrast to those other brands that do not enjoy that popularity among the public.

Paula Barnola
Vargas Vilardosa Abogados, Spanish Law Firm
Eurojuris España, Spanish law firms network