February 20, 2012 admin
Sin categoría
The Constitutional Court of Spain, in its judgment of 16 February 2012, has
declared the unconstitutionality of Article 43.1 of the Family Code of Catalonia. The said rule provided for the possibility of accumulating the action of dividing common real estate with the action of dissolution of marriage. According to the TC, that rule is a procedural innovation which is contrary to Article 149.1.6 of the Spanish Constitution, because it establishes the exclusive competence of the State to enact the “procedural legislation, without prejudice to the necessary specialties
in these fields arising from the particularities of the substantive law of the Autonomous Communities“.
http://www.tribunalconstitucional.es/es/resolucionesrecientes/Documents/2006-05394STC.pdf
February 14, 2012 admin
Sin categoría
On 11 February 2012 has been published in the Spanish Official Gazette the Royal
Decree-Law No 3/2012 of 10 February on urgent reform of the labour market. This
is a intense regulation and with a profound impact on relevant aspects of labour law. The legal text is organized into five chapters, through which are defined the main objectives of the reform: measures to promote the employability of workers, measures to promote job creation and permanent contracts, measures to promote internal flexibility of companies as an alternative to job loss, measures to promote efficiency and reduce labour market duality and finally changes in the recent Law No 36/2011 of 10 October, Regulatory of the Labour Proceedings.
The reform is multifaceted: modification and creation of new contracts, new paid leaves, new job classification system, functional mobility, geographic, substantial
modification of the employment contract, etc..
Amongst them could be highlighted some as the greater ease of cutting off collective conventions and the broadening of possible subjects to be agreed in enterprise agreements which prevail over any other collective agreement, establishment of new objective grounds for collective redundancies, new forms of labour absenteeism measure in order to end the employment contract; new calculation of compensation for unfair dismissal, suppression of procedural salaries, etc.
January 10, 2012 admin
Sin categoría
In the last quarter of 2011 the Court of Justice of the EU has issued several rulings of interest regarding cross-border insolvency proceedings, covering different areas of the EU Regulation 1346/2000; in chronological order, could be highlighted the following judgments:
a) Judgment of 20 October 2011, which delimits the interpretation of the concept of debtor’s “centre of main interests” , as well as the data and evidences which could be sufficient to rebut the presumption that this location coincides with the registered office; besides is also developed the concept of “establishment” for purposes of application of Regulation 1346/2000.
b ) Judgment of 17 November 2011, which examines whether an authority of a Member State, without the benefit of creditor status or acting on behalf thereof may request the opening of territorial insolvency proceedings independently.
c) Judgment of 15 December 2011, on whether the confusion of the corporate assets of one company is sufficient evidence to alter the presunmption about the location of its “centre of main interests”.
On 1 January 2012 entered into force the new Arbitration Rules of the International Chamber of Commerce (www.iccwbo.org), based in Paris. As most relevant news, could be highlighted the rules regarding multi-party arbitration, the appointment of an emergency arbitrator to order urgent measures and several provisions intended to facilitate the intervention in investment arbitrations. As well as to to speed up the proceedings and reduce costs.
http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/2012_Arbitration%20and%20ADR%20Rules%20ENGLISH.pdf
On May 21 was published in the “Boletín Oficial del Estado” the Law 11/2011 of 20 May, which reforms the Law 60/2003, of December 23, on Arbitration, being its entry into force on the twentieth day following its publication. Its text can be found at the following link:
http://www.boe.es/boe/dias/2011/05/21/pdfs/BOE-A-2011-8847.pdf.
It can be highlighted the following points:
– The competence for judicial appointment and removal of arbitrators is attributed to the Civil and Criminal Division of the Supreme Court, as well as knowledge of the action to annul the award and also the recognition of foreign arbitral awards.
– The existence of an arbitration agreement should be alleged by means of a demurrer of jurisdiction or “decinatoria” (within 10 days, both the ordinary proceeding and verbal).
– It includes an explicit reference to arbitration on corporate issues and establishes that the impugnation of corporate agreements should be entrusted to an arbitration institution.
– In arbitration in law, the arbitrator shall have the status of jurist (degree in law), unlike the previous regulation, which only allowed to appoint lawyers as arbitrators in that kind of proceedings.
– The expiration of the term without rendering the final award will not affect the effectiveness of the arbitration agreement or the validity of the award rendered.
– Precautionary measures are foreseen before the start of arbitration proceeding.
– Sets a special system for resolving disputes in the public field.
Moreover, in the same Bulletin was published the Organic Law 5 / 2011 of 20 May, by which adjustments are made in LOPJ as a result of the said legislative reform.
In international trade one of the most importan modifications this year has been the publication by the Chamber of Commerce (ICC) of the new version of the INCOTERMS 2010, release that introduces significant changes with regards to the previous 2000 version. The most important changes are:
a) Suppresses the division of Incoterms into four groups (E, F, C, D) and replaced by an organization in two groups: those that can be used for any mode of transport and also for combined transport and / or multimodal (EXW, FCA, CPT, CIP, DAT, DAP and DDP) and a second category refers only to those that can be used for martime or fluvial transport (FAS, FOB, CFR and CIF ).
b) Are suppressed four Incoterms 2000 (DAF, DES, DEQ DDU) and are incorporated two new Incoterms 2010 (DAT, Delivered At Terminal and DAP, Delivered At Place), so in the 2010 version the Incoterms are eleven unlike the thirteen of the 2000 version.
c) Modifies the contents of Incoterm FOB stating that the seller / exporter must deliver the goods “on board”, thus eliminating the imaginary line from the side of the ship; besides, the costs of stevedoring at the port of origin will be charged to the seller / exporter.
On June 18, 2011 will come in force the EC Regulation No. 4 / 2009 of 18 December 2008 on on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations and Protocol Hague of 23 November 2007 on the law applicable to maintenance obligations. The Regulation, which applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity, replaces the complex regulatory framework that exists on this matter.
On December 29, 2010 was published in the Official Journal of the European Union, Regulation (EU) No. 1259/2010 of the Council of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome III Regulation). This Regulation will mean, when the same is applicable, a radical change in this area because the Article 107 of the Spanish Civil Code is far from the solutions offered by the European Union Regulation. Article 107 of the Civil Code will be have only a mere residual application (except in relation to marriage annulment) because its application will be limited to those cases and matters outside the EU new Regulation.
According to its Transitional Provisions, the Regulation shall apply “only to legal proceedings instituted and to agreements of the kind referred to in Article 5 concluded as from 21 June 2012. However, effect shall also be given to an agreement on the choice of the applicable law concluded before 21 June 2012, provided that it complies with Articles 6 and 7“.
