Imperativeness of the conflict rule and application of foreign law Sentencia del Tribunal Supremo, Sala de lo Civil, 1427/2024, de 30 de octubre de 2024

Abstract

The application of foreign law in the process poses challenges in private international law, as it involves the incorporation of rules from legal systems other than that of the forum. In Spain, Article 12.6 of the Civil Code establishes the obligation to apply the conflict of laws rule ex officio, but the Civil Procedure Act requires that foreign law be proven by the parties, generating tensions of interpretation. The Supreme Court ruling of 30 October 2024 addresses this problem in a case concerning timeshare contracts signed in Tenerife under English law. The Supreme Court determines that the applicable law is English, but in the absence of sufficient evidence, it dismisses the lawsuit, ruling out the possibility of the judge substituting the parties in proving foreign law, although it recognises its power to upport it, reinforcing the idea that the burden of proof lies with the person invoking foreign law, which can lead to the defendant obtaining dismissal of the lawsuit simply by showing that the law alleged by is not the applicable one. The ruling emphasises the exceptional ature of the application of Spanish law as provided for in Article 33 of the Law on International Legal Cooperation in Civil Matters and points to the need for clearer rules on the proof of foreign law to avoid violations of the right to effective judicial protection. This opens up the possibility for the Constitutional Court to review this doctrine in a future appeal for legal protection.