In relation to governing law, see Practice note, Rome I: an outline of the key provisions for guidance. Rome I determines the governing law of contracts and will be applied by the courts of all EU member states (except Denmark) to contracts concluded on or after 17 December 2009 (provided the contract is in the scope of Rome I – see the section of the Practice note on subject matter scope of Rome I for further information on scope). Article 3(1) of Rome I provides that a contract will be governed by the law chosen by the parties. Such a choice must be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. This will often be in the form of a governing law clause.
Where the parties have not made an express choice in the contract, Article 4 sets out the applicable governing law (see further Practice note, Rome I: an outline of the key provisions: Applicable law in the absence of choice (Article 4)).
Note that under Article 6, Rome I, certain consumer contracts are governed by the law of the country in which the consumer has his habitual residence (see Specific types of contracts).
In relation to which court has jurisdiction to hear a dispute/in which court proceedings should be commenced, see Practice note, Jurisdiction: an overview for guidance. As the countries concerned are both EU member states, the Brussels Regulation will apply, which has direct effect in England and other EU member states (again, provided the matter is in the scope of the Brussels Reg – see the Practice note). The basic rule under the Brussels Regulation is that if the defendant is domiciled in a member state, the courts of that state have jurisdiction to hear the claim (Article 2).
However, Article 2 is subordinate to certain other jurisdiction rules in the Brussels Reg (see the Practice note). One of these is Article 22: exclusive jurisdiction. Member states have exclusive jurisdiction in relation to certain matters on the basis that they are not suitable for adjudication by a foreign court. For further information, see the Exclusive jurisdiction section of the Practice note.
Another of these rules is Article 23: jurisdiction agreements. If the parties have agreed that the courts of one or more member states have jurisdiction to settle their disputes, and at least one of the parties to the agreement is domiciled in a member state, then the Brussels Regulation recognises that agreement and the agreed court will have jurisdiction. The contract in question may have a jurisdiction clause which specifies which courts will have jurisdiction. See further theJurisdiction agreement section of the Practice note.
In addition to the above, you may want to consider the provisions under Articles 15 to 17, Brussels Reg. They relate to jurisdiction over consumer contracts but do not apply to all contracts which might be called consumer contracts. They apply to a contract concluded by a person (the consumer) for a purpose which can be regarded as being outside his trade or profession and which is one of the following:
- A contract for the sale of goods on instalment credit terms.
- A contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods.
- In all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the member state of the consumer’s domicile or, by any means, directs such activities to that member state or to several states including that member state, and the contract falls within the scope of such activities.
Proceedings may be brought against a consumer by the other party to the contract only in the courts of the member state in which the consumer is domiciled (Article 16(2)). See further Practice note, Jurisdiction: an overview: Consumer contracts (Articles 15 to 17).
If, on the other hand, your query does not relate to commencing proceedings, but relates to enforcing a Spanish judgment in England, see Practice note, Reciprocal enforcement of judgments: Enforcement of foreign judgments in England and Wales. Enforcement would be either under the EEO procedure (see here) or governed by the Brussels Regulation. For details of the procedure for enforcing a foreign judgment in England under the Brussels Regulation, see Checklist, How to enforce a foreign judgment in England under the Brussels Regulation.
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk