Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

The Court of Justice has recently issued a resolution with significant practical consequences in the field of European Family Law, although the assessments on it are very different depending on the issues resolved by the meaning of the ruling. The ruling of August 1, 2022 (C-501/20, MPA vs. LCDNMT), addresses two major issues, both linked to the sector of international judicial competition, which deserve an in-depth analysis for different reasons. On the one hand, the Court specifies the relevant elements to determine the habitual residence of the parties in matters of Divorce (marital crisis), parental responsibility and maintenance obligations, as a fundamental criterion of jurisdiction under the Brussels II and Brussels III Regulations, completing the doctrine already in force and adapting it to the referenced case. Starting from the premise that none of these European instruments contains any definition in this regard, this judgment is decisive in locating the competent national jurisdiction in a case such as the one at hand, in which the spouses are EU agents, so the diplomatic immunity is raised, and consequently its potential incidence in this issue. On the other hand, this ruling specifies the conditions under which a court of a Member State of the EU, before which the claim has been filed, can establish its jurisdiction to rule on matters of divorce, parental responsibility and maintenance obligation when, in principle, no Member State is competent, when those involved hold the nationality of different Member States but have residence outside the Union, based on the rules of residual jurisdiction or forum necessitatis provided for in the applicable European instrument. The -restricted- interpretation that is made of the rule of residual jurisdiction in matrimonial matters in the Brussels II Regulation, is especially controversial, to the extent that it opens the door to a potential forum of the defendant’s nationality as well as to possible faltering cases, due to a denial of justice, when the internal jurisdiction law does not provide for this type of connection criteria.

Two types of problems that may affect members of the Islamic community, regarding their posible integration into the Spanish Social Security System are addressed in this study. On the one hand, those derived from the posible provision of services, in the Islamic country of origin and in Spanish territory, being necessary to coordinate the legislation of both states for there cognition of benefits. On the other, those caused by certain practices and institutions of Islamic law, not recognized by our legal system, with particular reference to the Kafala and the continuity that the Supreme Court doctrine may have had on there cognition of a widow’spension to all beneficiaries, in case of polygamous marriage.

Metaverse, a completely virtual space, is called to pose new challenges to the European Union Competition Law. The so-called technology giants are investing billions of dollars in developing new platforms, self-named metaverse. Among these, we can highlight the started projects of Epic Games, Roblox Corporation, Meta, or Microsoft. However, the average user is still confused about what this new market consists of or how it will be classified in antitrust terms. Thus, in this paper, we will focus on the definition of this new virtual world. Besides, we will study how the European Union new category: access guards, to designate those companies or higher volume platforms. Thus, they will have a set of obligations to guarantee a balanced and disputable interacting space in the market.

»Reimbursement of Extrajudicial Attorneys’ Fees in Spanish Law. A Systematization of Procedural and Substantive Claims« (PhD-thesis published in German language, Duncker & Humblot, 2021, Schriften zum Internationalen Recht (SIR), Volume 229.) David Cuenca Pinkert examines the recoverability of extrajudicial attorneys’ fees in cross-border civil law cases under Spanish law and thereby demonstrates structural parallels to other European legal systems and universal principles of cost recovery. This approach systematizes procedural and substanti ve claims, which the author sees as a key to a better understanding of reimbursability.

The main features of inheritance relations with a foreign element are given. The main issues to be resolved in inheritance relations with the help of international agreements concluded by Ukraine with foreign states on legal assistance in civil cases were identified. It has been established that the norms of two dozen bilateral international agreements on legal assistance and about three dozen consular conventions that Ukraine has concluded with many states are devoted to the issue of international inheritance. Some of the conventions operate in the order of succession of Ukraine after the collapse of the USSR. Comparative analysis of the content of the texts of bilateral international agreements of Ukraine with foreign states on legal assistance in civil matters allowed classifying them by methods of regulation of inheritance relations into three groups: ones that do not contain separate articles (articles) on the regulation of inheritance relations; agreements on legal relations and legal assistance in civil matters between Ukraine and foreign countries, which contain provisions on inheritance relations, which in turn are divided into two groups depending on the structure and content of the articles: inheritance cases and the right to inheritance. The analysis gives grounds to claim the lack of a unified approach to the conclusion of contracts in the third group. This cannot be explained by the will of the parties, because the content of this group of agreements has a high level of identity. The agreement between Ukraine and the Republic of Cyprus on legal assistance in civil matters, which has a separate section IV on inheritance, has an exceptional content in the regulation of inheritance relations, but in comparison with other two groups of agreements with foreign countries contains very brief information. From the analyzed bilateral international agreements it was concluded that most aspects of inheritance relations are regulated by the personal law of a testator or the right of location of a property. There is a gradual overcoming of the problem of splitting the inheritance status, regardless of the location of the inheritance, the spread of the possibility of choosing the applicable law to the estate.

Jurisdiction clauses play a particularly important role in the field of contracts for the carriage of goods by sea, which are essentially international in nature, providing legal certainty and at the same time promoting commercial traffic. The forum selection clauses inserted in bills of lading, however, raise certain problems of formal validity of the consent and opposability against third parties. Article 25 RBI-bis is silent on the translational effectiveness of jurisdiction agreements, this gap being filled by the jurisprudence of the TJUE. The application and interpretation of this jurisprudence in relation to arts. 251 and 468 LNM has given rise to conflicting positions both in the doctrine and in the Spanish courts, and has finally led to the presentation of a preliminary ruling before the CJUE.

The reason for writing this contribution came as a result of reading a decision from the AP de Santander, on the 4th of May 2022, and the corresponding first instance decision with regards the divorce between two Romanian nationals, temporary workers in Spain. In addition to the incorrect application of EU Regulations (2201/2003 and 2019/1111), the decisions scarcely substantiate the place where the parties were “habitually resident”, an essential point when this determines the access to justice in our domestic courts. In a wider study of other domestic decisions, it has been observed that this type of errors is not infrequent, both in relation to the scope of application of the EU Regulations and of the domestic rules on international jurisdiction, both critically analised, and also to the autonomous concept of “habitual residence” which is present in most of the alternative forums of international jurisdiction concerned. 

Thirty years after the publication of Directive 93/13 on unfair terms, the process of progressive implementation continues in Spain, both legally and jurisprudentially, in which the judges play an important role through the preliminary ruling question. This Directive is - like no other - a paradigm of the institutional game between the Member States and the European Union. The Spanish case is a case in point. A Directive that in principle has a material or substantive content has turned out to be a real Trojan horse in Spanish formal (procedural) law, altering its classic principles, to the astonishment of procedural doctrine.

Article 79 of the United Nations Convention on Contracts for the International Sale of Goods imposes very strict requirements for its application as a ground for exemption from liability. As an alternative to it and in line with modern relational contracts theories, this article proposes, in situations where there are circumstances that prevent a normal development of the contract, the use of the anticipatory breach mechanism contained in Articles 71 to 73 of the Convention, especially for contracts of a certain complexity and of medium and long term, such as supply contracts.

One of the elements that shows the expansion of the trademark law is the great variety of signs whose registration is admitted as a trademark. This study focuses on three types of signs that are integrated or confused with the appearance of the products: the pattern mark, the position mark and the color mark. These types of marks are an excellent example of the tension between the desire of the economic operators to have attractive elements of differentiation and the need to ensure the free availability in the market of certain elements. Having this into account, we analyze the concept of these non-traditional trademarks and their representation requirements, the main absolute grounds for refusal and the scope of legal protection that they receive once registered.