International Legal Cooperation: Framework

• This document constitutes Lesson 1 of a course on International Legal Cooperation, focusing on the general framework for international cooperation in civil and commercial matters.

Introduction

• This lesson aims to provide an overview of international legal cooperation.
• The goal is to understand its concept, scope, and foundations.

International Legal Cooperation in International Relations Studies

• International Relations studies aim to equip students with the skills for professional activities in international relations within state administration, diplomatic careers, or EU administration. Acts of international legal cooperation can be carried out through diplomatic or consular agents, such as notifications or document transfers to residents in another Member State.
• Various state organizations are involved in cooperation efforts within the legal field.

Concept and Scope of International Legal Cooperation

• Exercising jurisdictional functions is a traditional aspect of state sovereignty, limited to its borders.
• International cooperation is essential to address international private situations and meet the demands for justice and security.
• International legal cooperation involves collaborative actions between authorities of two states to perform jurisdictional acts outside their territories.
• Legal mechanisms exist to allow extraterritorial jurisdiction while respecting state sovereignty.

Key Aspects

• The interpretation of international legal cooperation covers international judicial assistance, including notifications, document transfers, evidence gathering, foreign law information, and recognition/enforcement of judgments
• This definition excludes international development cooperation or criminal legal cooperation.
• International development cooperation is a key aspect of democratic states' foreign policy towards countries with lower welfare levels, based on international solidarity
• The EU can conduct actions and a common policy for cooperation with third countries and humanitarian aid, without affecting member states' actions.
• International cooperation includes state or international organization aid, economic/social/technical development projects, resource mobilization, and human rights protection for community support.

Areas of International Legal Cooperation

• International legal cooperation includes civil, criminal, and administrative fields.
• Criminal matters include extradition, criminal investigation acts, and penal sentence enforcement, through European framework or bilateral/multilateral agreements.
• Administrative matters include EU information exchange, official exchanges, training programs, and cooperation like the "Schengen Area."
• International collaboration in criminal and administrative matters does not form part of this study.

Basis and Limitations

• It is the duty of Spanish authorities to engage in international legal cooperation, based on the Spanish Constitution and Law 29/2015 (LCJI).
• The Spanish Constitution recognizes the right to effective judicial protection
• The state must ensure effective international judicial protection of individual rights and interests.
• The LCJI requires Spanish authorities to cooperate with foreign authorities without delay, following flexibility and coordination principles.
• The Spanish Constitution and LCJI set limits on international legal cooperation. Cooperation will be denied if it goes against constitutional values or fails to respect procedural guarantees under Article 24 of the Spanish Constitution.

Program Contents

• The program includes:
  • International judicial assistance (lessons 2 and 3).
  • Foreign law (lesson 4)
  • Trans-border resolution effectiveness (lessons 5, 6, 7, and 8).

International Judicial Assistance

• International judicial assistance, or judicial aid, involves performing procedural acts like notifications, document transfers, and evidence gathering in other states.
• State sovereignty limits actions to a state's territory.
• Performing procedural actions in another state requires requesting assistance from its authorities.
• Cooperation can be requested by Spanish authorities (requesting state/state of origin) to foreign authorities (requested state/receiving state) or provided by Spanish authorities at the request of foreign authorities.
  • The state of origin is the state requesting judicial assistance.
  • The receiving state is the state to which the international judicial assistance is requested.

Information on Foreign Law

• When Spanish courts analyze an international private situation and the conflict rule designates foreign law, the Spanish judge must know Spanish law but is not obliged to know foreign law.
• Topics discussed include legal tools and digital platforms to facilitate understanding foreign regulations that are relevant in a Spanish judicial process.

Cross-Border Effectiveness of Resolutions

• Traditionally, the principle of reciprocity governs the system for recognizing and enforcing foreign resolutions, judicial decisions, and other documents.
• Under reciprocity, a court ruling in one state (state of origin) could be enforced in another (state of destination) only if the originating country validated rulings from the destination country's courts.
• A principle that favors promoting international legal cooperation is prevalent today, even without reciprocity, but international legal cooperation may be refused.
• Cooperation now evolves towards a principle that involves authorities from both the State of origin and destination working together to enforce a sentence.

Cooperation Scenarios

• Cooperation between judges/authorities across different States occurs under European, international, or state legal frameworks.
• The governing law depends on the case, considering the litigation's subject, requested cooperation type, and involved States' authorities.
• The state where authorities/judges are located determines the applicable cooperation regulations.
• EU authorities follow EU institutional norms, and States in multilateral/bilateral agreements follow those norms. Otherwise, state norms regulate international legal collaboration.

EU Institutional Dimension

• The Treaty on the Functioning of the European Union (TFUE) dedicates Title V (articles 67-89) to the area of freedom, security, and justice, including a chapter on judicial cooperation in civil matters
• Denmark does not participate in instruments proposed under Title V of the TFUE.
• The EU takes measures to enhance judicial cooperation in civil matters with cross-border implications, aiming to develop an area of freedom, security, and justice.
• The EU aims to boost access to justice through mutual recognition of judgments, free circulation of court decisions, and abolishing intermediate measures (exequatur).
• Differences in national laws of member states impede the market; institutional norms offer a uniform solution.
• Digital tools and expert networks are fundamental, notably, the European e-Justice Portal.
• The European Judicial Network in civil and commercial matters (EJN civil) is also relevant.

International Dimension

• Judicial assistance mechanisms and systems for recognizing and executing foreign decisions/acts/documents are regulated by texts, agreements, and treaties.
• International conventions can be bilateral if ratified by Spain and another state, or multilateral when multiple states are parties.
• Many multilateral conventions of which Spain is a party are signed within The Hague Conference on Private International Law.
• The Statute of The Hague Conference aims to progressively unify private international law standards.

The Hague Conference

• Members of The Hague Conference include states that participated in one or more sessions and accepted the Statute.
• Other states with a legal interest in the Conference's work can become members.
• The Ibero-American Judicial Cooperation Network, known as IberRed, is a tool for collaboration in civil matters.
• It facilitates the optimization of civil judicial assistance instruments and strengthens cooperation ties.
• IberRed supports mutual trust among members, promoting informal contact among involved judges, prosecutors, and officials, complementing and streamlining formal cooperation not replacing it.
• IberRed uses the Iber@ electronic platform, is the preferred way to send international legal assistance requests between Central Authorities and is governed by the Treaty of Medellín.

National System

• The framework relies predominately on European and international provisions; national standards play a secondary role. In the absence of institutional or conventional rules, state standards that govern international judicial cooperation come into effect.
• The central authority is the Ministry of Justice, and the use of internal and international cooperation networks should be promoted.
• Networks are composed of specialized experts that give information on cooperation instruments.
• REJUE (Spanish Judicial Network) is composed of specialized judges and magistrates that are spread throughout national territories while REDUE (European Union Law experts) provides support on issues under European Union law.
• The General Council of the Judiciary’s International Relations Service coordinates these Networks, as per Title II of Regulation 1/2018.
• The Prontuario is a quick reference tool that aims to simplify international judicial cooperation activities, offering information on various subject areas.