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Civil Process Forum: practical application of the Procedural Law

The Civil Process Forum of Fide devotes its attention to the analysis of the Procedural Law from a point of view of practicality in the application of said law in the different areas of involvement.

Antonio Hernandez Vergara

Director.
Magistrate. Lawyer of the Technical Cabinet of the Supreme Court. Judicial secretary (on leave). Experience in organs of civil and criminal jurisdictions for twenty years. Advisor to the General Directorate of the Center for Legal Studies in 2000 and 2001. Lawyer of the Inspection Service of the General Council of the Judiciary from 2002 to 2010. Member of the editorial boards of two legal journals: "Judicial Secretaries" and "Civil process - Legal notebook. Sepin ”. Member of the Academic Council of FIDE.

Luis Sanz Acosta placeholder image

Director.
Magistrate of Section 28 bis of the Provincial Court of Madrid. Professor of Commercial Law at the Francisco de Vitoria University in Madrid. Member of the Academic Council of Fide.

Miguel Guerra Pérez

Director.
Director of Sepinnet Civil Procedure. Associate Professor of Procedural Law, Universidad Carlos III. Member of the Academic Council of Fide.

Publications

Discover all the publications, session summaries and other documents related to the activity of this forum:

16 September 2019

Speakers:

  • Carmen Cerda, Deputy Director of Surveillance, National Commission of Markets and Competition (CNMC)
  • Elena Gómez Conde, Collaborating Lawyer of the Department of Fees of the Madrid Bar Association 

Moderator: Miguel Guerra, Lawyer. Director of the Sepinnet Civil Process Magazine. Member of the Academic Council of Fide

Summary:

Law 15/2007, of July 3, on the Defense of Competition prohibited, among other practices, the setting of prices for services. This resulted in the elimination of the possibility for the Bar Associations to establish guidance scales and any other orientation, recommendation, guideline, norm or rule on professional fees, except for the purposes of appraisal and sworn accounts as established in the Norm. regulator of Professional Associations. But was the action of the Bar Associations trying to adapt to the new regulations by hiding them enough? It seems that not when the CNMC sanctioned different Associations raising a whole series of questions, because how to combine free competition with the legal certainty of having criteria to inform and resolve challenges to cost assessments? How to comply with both regulatory provisions?

2 October 2019

Speaker: Manuel Ruiz de Lara, Magistrate, Commercial Court No. 11 of Madrid.

Moderator: José Massaguer, Partner, Uría Menéndez. Professor of Commercial Law

Summary:

We carry out an analysis of the unfair competition actions that may be filed as a consequence of the existence of concurrent illegal acts, developing in particular the provisions of article 32 of the Unfair Competition Law and the assumptions that constitute the basis of the unfair competition actions.

We determine the procedural channel through which unfair competition actions must proceed according to the provisions of article 249.4 and 250 of the LEC.

Active legitimacy for the filing of unfair competition actions was studied in accordance with the provisions of article 32 of the Unfair Competition Law. Rules were developed on individual legitimation, legitimation for illicit advertising, legitimation for the exercise of collective actions, legitimation of consumer associations and professional corporations.

Likewise, it was discussed about the problems of passive legitimation in relation to the actions of unfair competition and the formation of passive joint litigation when the concurrent illicit is carried out through a network of companies as in the case analyzed in the Judgment of the Court of Justice of the EU of November 9, 2017, in the Tünkers case, in which a possible illegitimate interference in the clientele of the injured competitor is studied through two interposed companies and not the company with which they had commercial relations.

Special attention was paid to the analysis of the prescription exception of unfair competition actions, analyzing the dies a quo according to the jurisprudential interpretation of article 35 of the Unfair Competition Law.

We develop the questions that arise in the matter of objective and territorial competition when an action of unfair competition is exercised in accordance with the provisions of article 86 ter of the LOPJ and 52 of the Civil Procedure Law. Mention was also made of the possibility of submitting disputes derived from concurrent illicit to arbitration and the implication of clauses of submission to arbitration on the jurisdiction of commercial courts.

One of the most significant novelties introduced by Law 29/2009 was studied is the one relating to the promotion of codes of good conduct, which is done in arts. 37 to 39 LCD. A reference was made to actions associated with codes of conduct, which are of two types: (a) actions against the codes of conduct themselves (art. 38); and (b) actions for violation of the code of conduct itself by businessmen and professionals adhering to it (art. 39). Mention was also made of out-of-court conflict resolution systems.

In the session, the requirement of prior recourse to the control bodies of the codes of conduct was analyzed as a procedural requirement to file an action of unfair competition according to the wording of article 39 of the Unfair Competition Law. The interpretation, objective scope and applicability of said precept and its coordination with Directive 2005/29 / CE were studied.

Likewise, the possibility of accumulation of unfair competition actions and actions for infringement of industrial property rights, in particular trademark rights, was also studied.

4 November 2019

Speakers:

  • Miguel Guerra Pérez, Director of the Sepinnet Civil Procedure Magazine
  • Victoria Sainz de Cueto Torres, Magistrate-Judge of the Court of First Instance number 1 of Alcalá de Henares. Doyenne

 

Moderator: Luis Sanz Acosta, Magistrate of Section 28 bis of the Provincial Court of Madrid. Professor of Commercial Law, Francisco de Vitoria University of Madrid

Summary:

The counterclaim has been defined as the new claim that is accumulated by the defendant to an ongoing process and constitutes a possibility, not an obligation.

Now, do we know your requirements? Is the implicit counterclaim allowed in any case? What is the degree of connection required with the main claim? How does your approach influence the setting of the amount and delimitation of the object of the entire process? Does it open the way of resources? Do we know their differences with both legal and judicial compensation? The procedural rule does not require a counterclaim when the defendant is limited to requesting acquittal, but is it enough to answer when defensive allegations are introduced that cover up petitions and that may have effects in subsequent processes given the effect of res judicata? These and other questions have been answered in this session.

26 November 2019

Speakers:

  • Miguel Guerra Pérez, Director of the Sepinnet Civil Procedure Magazine
  • Francisco Moya Hurtado de Mendoza, President of the 25th Section, Provincial Court of Madrid

 

Moderator: Luis Sanz Acosta, Magistrate of Section 28 bis of the Provincial Court of Madrid. Professor of Commercial Law, Francisco de Vitoria University of Madrid

Summary:

The civil procedural legislator opted for writing as the essential form for appeals and cassation. This has meant, many times, filings of filing, opposition and challenge of the resources of an inordinate extension that, according to our Supreme Court and the Provincial Courts, are difficult to accept and can even impede their review work.

To avoid this situation, first the Supreme Court and now the majority of the Magistrates of the AP Madrid (agreement of September 19, 2019), have adopted Agreements that require formatting requirements and limit the extensions of the briefs to 25 pages.

But are the agreements binding? Can they violate effective judicial protection? Are the limitations of the appeal comparable and extensible? Will they always determine inadmissibility or will there be exceptions?

In this session, the content of the Agreement was analyzed, as well as the possible consequences that it will have in the daily preparation of the appeal by the lawyers.

December 10 2019

Speaker: Luis Medina Alcoz, Professor of Administrative Law at the Complutense University of Madrid. Lawyer of the Constitutional Court

Moderator: Antonio Hernández Vergara, Magistrate of the Technical Cabinet of the Supreme Court. Judicial Secretary on leave of absence. Member of the Academic Council of Fide

Summary:

Faced with the enormous normative production of our times, judges and courts face daily the difficulty of identifying, interpreting and applying the norm applicable to the case, which naturally includes European Union Law, so Spanish to these effects like any law of the Cortes Generales or of the territorial Parliaments. Until recently, the Constitutional Court considered that decisions in this regard, including that relating to referral of preliminary questions before the Court of Justice of the European Union, were essentially the responsibility of the judiciary. Thus, the Constitutional Court was authorized to examine them only superficially. In short, in order to declare that an ordinary judge violated nothing less than a fundamental right (that of the defendant to effective judicial protection), it was necessary that his decisions on the selection and interpretation of the applicable law, externally analyzed, were clearly arbitrary or manifestly unreasonable. However, STC 37/2019, of March 26, relating to the social bond, has taken a spectacular turn: if the ordinary judge disapplies the national law for the benefit of European law without formulating a preliminary question, the Constitutional Court is now authorized to to be fully introduced to European law to verify whether its requirements were met in the case and, in particular, whether the approach of the question was appropriate in accordance with the case law of the Court of Justice. If the conclusion reached is that the approach was appropriate, it will be declared that the judicial body violated a fundamental right. The session tried to explain this new doctrine and open a debate around its technical consistency and practical consequences.

13 January 2020

Speaker: Luis Cortezo, Partner of Andersen Tax & Legal in the Litigation, Insolvency and Arbitration area in the Madrid office

Moderator: Luis Sanz Acosta, Magistrate of Section 28 bis of the Provincial Court of Madrid. Professor of Commercial Law, Francisco de Vitoria University of Madrid. Member of the Academic Council of Fide

Summary:

The request and practices of the test of the interrogation of the parties and testimony, presents many doubts when one of the parties is a legal person.

The reality is that the casuistry presented by art. 309 and is of the ritual standard. Many companies have difficulties when it is not entirely impossible to make their legal representative appear, giving rise to the controversial figure of the "attorney-in-fact to acquit positions" and this generates many practical problems.

Furthermore, in most cases the legal representative did not personally intervene in the controversial legal relationship and this entails a whole series of identification obligations and collaboration with the Court to enable the development of the evidence. Thus we will analyze: the indication of the person who intervened In what capacity is it? What are the consequences of its lack of indication? Is it necessary to request the court summons? How does the fictional confession operate in these cases?

Likewise, the exceptional privilege granted to public legal persons by art. 315 LEC for your written statement raises interesting questions when requesting and developing the test or how to cross-examine.

Finally, the statement of the employee of the mercantile companies as a witness forces us to reflect on aspects such as the blemish or the greater or lesser credibility that is granted by the probative assessment of our Courts.

March 3 2020

Speakers:

  • Patricia gabeiras, Founding Partner of Gabeiras & Asociados
  • Eduardo Villellas, Partner of the Litigation and Arbitration department of Deloitte Legal

Moderator: Miguel Guerra, Director of the Revista Sepinnet Enjuiciamiento Civil. Member of the Academic Council of Fide

Summary:

The counterclaim has been defined as the new claim that is accumulated by the defendant to an ongoing process and constitutes a possibility, not an obligation.

Now, do we know your requirements? Is the implicit counterclaim allowed in any case? What is the degree of connection required with the main claim? How does your approach influence the setting of the amount and delimitation of the object of the entire process? Does it open the way of resources? Do we know their differences with both legal and judicial compensation? The procedural rule does not require a counterclaim when the defendant is limited to requesting acquittal, but is it enough to answer when defensive allegations are introduced that cover up petitions and that may have effects in subsequent processes given the effect of res judicata? These and other questions have been answered in this session.

Academic coordination: Carmen Hermida

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