Interim measures in Spain

1.1.1 Previously, interim measures were regulated by the former Spanish Civil Procedure Act, 3 February 1881. The provisions relating to interim measures were unclear. 

1.1.2 The Spanish Civil Procedure Act (1/2000, 7 January 2000) (“CPA”) now regulates interim measures: Book III, Title VI, Articles 721-747 of the CPA contain full and structured provisions governing interim measures, including jurisdiction, legal requirements, timing, costs, applicable procedure, enforcement, and other aspects related to interim measures.

1.1.3 Article 5 of the CPA expressly confers jurisdiction on Spanish courts to grant interim measures. The CPA also provides for interim measures within arbitration proceedings and foreign litigation. 1 The latter are enforced in accordance with EU Regulation No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 

2.1.1 Article 22 (vi) of the Spanish Law on Judicial Reform (6/1985, 2 July 1985, “LJR”) gives the Spanish courts jurisdiction to order interim measures, when the orders sought involve persons or property situated in Spanish territory and are to be enforced in Spain.

2.1.2 The court hearing the matter in the first instance has jurisdiction to hear any applications for interim measures. If proceedings have not yet been initiated, the court with jurisdiction to hear the main claim will have jurisdiction over the application for inter-im measures.

2.1.3 The LJR determines the jurisdiction of the Spanish Courts, in descending order: 2

• National High Court; 
• Higher Courts of Justice;
• Provincial Courts;
• Courts of First Instance and Trial Courts; Commercial Courts; Criminal Courts; Courts for Violence towards Women; Administrative Courts; Labour Courts; Penitentiary Parole Board and Minors’ Courts; and
• Magistrates’ Courts.

2.1.4 Rules contained in the CPA determine which court has jurisdiction in the first instance. 3 Courts of First Instance are competent to hear all civil cases not expressly allocated to other courts by other laws. 4 

2.1.5 Courts of First Instance and Magistrates’ Courts are competent to hear cases in the first instance depending upon the subject matter and the amount in dispute. Magistrates’ Courts can hear civil matters amounting to less than EUR 90 5 (excluding those cases requiring an oral trial and expressly mentioned in the CPA 6 ).

2.1.6 In terms of natural persons, territorial jurisdiction corresponds to the court where the defendant is domiciled, unless otherwise established by law. 7  If the defendant is not domiciled in Spain, but in fact resides there, the competent court shall be the one of his or her actual residence. If the defendant is neither domiciled nor resident in Spain, they may be sued where they were last based, or where they last resided in Spain. If the jurisdiction cannot be determined following these rules, the defendant can be sued where the claimant is domiciled. 

2.1.7 Corporate entities shall be sued where the entity has its registered office unless otherwise established by law. 8  They can also be sued in the place where the matters giving rise to the dispute (or the legal issue on which the claim is based) took place, provided that they have either (i) a business open to the public; or (ii) an authorised representative acting on behalf of the entity in that area.

2.1.8 During the appellate procedure, the competent court to hear an application for an interim measure is the one with jurisdiction over the appeal. Spanish Law contemplates three different appeals: (i) remedy of appeal; (ii) appeal for procedural breach; and (iii) appeal in the court of cassation. The court having jurisdiction to hear an application for an interim measure filed in such appeals differs. Whereas the first is heard by the Provincial Court, the second and third are heard by the Supreme Court.

2.1.9 With respect to jurisdiction in special cases (for example, where interim measures are sought whilst arbitration proceedings or the "judicial formalisation of an arbitration" 9  is pending) the competent court will be the court where the arbitration award is to be enforced, or the court where the interim measure is to have effect. 10

2.1.10 "Judicial formalisation of an arbitration” involves judicial intervention in the designation of the arbitrator(s) (e.g. if an arbitral clause states that both parties have to appoint an arbitrator but they cannot agree, the court steps in to appoint the arbitrator).

2.1.11 Article 15 of Act 60/2003 of 23 December on Arbitration (“AA”) provides for the judicial appointment of arbitrators. If an arbitrator cannot be appointed under the procedure agreed by the parties, any party may apply to the competent court to appoint the arbitrator(s) (or to adopt the necessary measures for that appointment). 11  The court may reject a request for an appointment only when, having considered the documents submitted, it deems that no arbitration agreement exists. 12

2.2.1 The court with jurisdiction to hear any application for interim measures will, in any case, be the court hearing the matter at first instance. Parties are free to agree to submit to the jurisdiction of the judicial district courts although only in terms of territorial jurisdiction, not subject-matter jurisdiction. If the parties opt to submit to a particular judicial district court, they will be bound to follow the procedural rules that apply for the respective court. 13

2.3.1 The court with jurisdiction to hear any applications for interim measures will be the court hearing the matter at first instance. The first instance court in the substantive matter will therefore always have jurisdiction in any application for an interim measure. In this regard, any jurisdiction clauses will have no effect. During the first instance proceedings, the first instance court shall be always competent to hear applications for interim measures. 14  Furthermore, the relevant appeal court shall have the competence within the appellate proceeding (second and following instances).

2.3.2 There is no specific court for interim measure applications. The rules outlined above will assist the applicant in determining which court has jurisdiction in the first instance to hear the application.

2.3.3 The scope and limits of the jurisdiction of Spanish civil courts are determined by the provisions contained in the LJR and in the international treaties and conventions to which Spain is a party. 15

2.3.4 The LJR 16 establishes the jurisdiction of the Court of First Instance in the following cases: 

• Cases not expressly allocated to other Courts, in the first instance.
• Acts of voluntary jurisdiction.
• Appeals from a Magistrates’ Court. 
• Civil competence matters between different Magistrates’ Courts located in the same district. 
• Requests for recognition and enforcement of foreign judicial decisions, as well as the enforcement of arbitration awards (except when international treaties or rules expressly give jurisdiction to another court). 
• Insolvency proceedings of natural persons, in accordance with the Act on Insolvency (22/2003, 9 July). 17
• Labour actions intended to achieve collective redress of employment contracts, in which the employer is the insolvent debtor.
• All enforcement on an insolvent debtor’s property, assets and rights. 
• All interim measures affecting an insolvent debtor’s assets. 

2.3.5 In addition, Commercial Courts are competent to hear some issues within the jurisdiction of the Civil Courts (Court of First Instance), such as:

1. proceedings concerning unfair competition, industrial and intellectual property, or advertising; or 
2. proceedings concerning the General Contracting Conditions Rules and the Protection of Consumers and Users Rules.

2.4.1 Rules concerning territorial jurisdiction shall not apply in case a party either explicitly or tacitly submits to the jurisdiction (with some exceptions to this rule). 18  A tacit submission is deemed to exist in the following three cases:

1. When the claimant files the claim or requests that the claim shall be heard by a specific judicial district or competent court for the claim (for example, a petition for preparatory enquiries in relation to IP infringements). 
2. When the defendant takes any action in response to the claim other than filing a plea to the jurisdiction. The plea to the jurisdiction submitted in due form, envisaged under the CPA, enables either party to challenge the competence and/or jurisdiction of the court.
3. When the defendant fails to appear at the hearing (provided that he had been summoned), or does appear without having filed an acknowledgment of service in due form. 

2.4.2 Submission of the parties to a jurisdiction shall be valid and effective only in those cases where the claim has been submitted before a court with subject-matter jurisdiction to hear the case. 19

2.5.1 In the event that the parties have agreed on a jurisdiction clause, such provision determines the courts of which district have jurisdiction. If there several courts of the same kind in the same district, the parties cannot determine a specific court, but the distribution rules shall determine to which of them a case submitted is allocated. 20

Specific tangible assets

3.1.1 Interim measures may concern specific tangible assets, which may be valued in monetary terms, such as proceeds and revenue from certain activities.

3.1.2 A party can request a distraint on such proceeds or revenue. If successful, the claimant will distrain an amount equal to the collective value of the proceeds or revenue rather than the individual assets or revenues individually.

3.1.3 Specific movable assets can be impounded and placed with a depositary (being a suitable person appointed by the judge). It is not possible to place the assets into court. 21

3.1.4 A party can apply for seizure, consignment and confiscation of revenue or proceeds (with a clear distinction between the seizure and confiscation of revenue from an illegal activity, and that from authorised activities (such as income from intellectual property)). 22

Acts authorised by the judge

3.1.5 Additionally, a party can apply for judicial administration or receivership of capital goods, or assets in which the defendant has legitimate or beneficial interest.

3.1.6 An inventory of assets can also be requested under conditions laid down by the court.

3.1.7 Provisional registration of a claim is allowed for assets or rights registered in public registries (such as the Property Registry or the Trademarks and Patents Registry) in cases where publicity of the relevant claim would be useful for the purposes of the proceedings.

3.1.8 A court order may also be issued to temporarily: (i) halt an activity; (ii) prevent someone from doing something; or (iii) prohibit someone from interrupting or halting the activity. 23

Specific materials and corporate decisions

3.1.9 The court may make interim orders in respect of specific materials and objects (including the judicial confiscation of items used for producing goods that infringe industrial and intellectual property rights).

3.1.10 Corporate decisions taken by any kind of trading company can also be suspended (e.g. a capital increase agreement reached by the administrative board of a company). 24

Ad hoc interim measures 

3.1.11 The court may adopt any other measures directed to protect the rights provided by law and to ensure effectiveness of any future judgement as explained in more detail at paragraph 3.3.2. 

3.2.1 Interim measures have to meet the following general requirements: 25

• They must be aimed solely at guaranteeing the effective judicial protection of a possible judgment in the applicant’s favour, to ensure that the enforcement of such judgment cannot be prevented or hampered while the relevant proceedings are still pending. 26
• They must be proportionate i.e. the least burdensome or damaging measure to the respondent to be equally as effective. 27
• They must be temporary and provisional. 28  An interim measure shall fall away once the main proceedings are concluded, except when the judgment or arbitration award is not favourable for the applicant. In such case, at the request of the applicant, the interim measure will remain in place for twenty days after the relevant judgment, arbitration award or mediation agreement becomes final. 29  The courts will not grant a measure unless it is strictly necessary to achieve the purpose of the proceedings for which the interim measure is requested. This arises from the so called “principle of minimum intervention” established under Spanish Law. 30

3.3.1 The specific types of interim measures available are: 31

• Prejudgment distraint, to ensure the enforcement of judgments ordering the delivery of amounts of money or revenue, rents and consumables that can be estimated in cash sums (by applying fixed prices).
• Judicial administration or receivership of capital goods or assets in which the defendant has legitimate or beneficial interest, or when the applicant seeks to obtain a judgment ordering that productivity is maintained or improved, or when the guarantee of productivity is of vital interest for the effectiveness of any future judgment. 
• The deposit of a moveable asset, when the applicant seeks an order to deliver the asset and that asset is in the possession of the respondent.
• The drawing up of inventories of assets in accordance with conditions specified by the court.
• The provisional registration of claims when they refer to assets or rights to be registered under public registers. Other registry notices may be ordered in cases where publication of the claim is useful or necessary to ensure adequate enforcement.
• A court order to temporarily: (i) halt an activity; (ii) prevent someone from doing something; or (iii) prohibit someone from interrupting or halting the activity (i.e. the court orders the affected party to either continue carrying out or to suspend the activity concerned). 
• The intervention and deposit of income obtained through an activity considered illicit and whose prohibition or suspension is sought, as well as the consignment or deposit of the amounts claimed, as compensation for intellectual property infringements. 
• Temporary deposit of the works or objects allegedly produced contrary to the rules on intellectual and industrial property, as well as the deposit of the materials/equipment used for their production.
• The suspension of certain corporate resolutions when the claimant challenging such resolutions represents at least 1 per cent of share capital (where the company is not publicly traded) or 5 percent of share capital (where the company is publicly traded).
• Any other measures expressly established by the laws for the protection of certain rights, or any measures deemed necessary to ensure the effectiveness of judicial protection granted in the event of a judgment being passed in favour of the applicant (claimant) in the proceedings. 

3.3.2 The above list is not exhaustive. The competent court has a discretion to grant the measure it considers most appropriate even if it is not included among those set out in the list above, in order to effectively ensure the rights and effectiveness of judicial protection. It is possible to apply before the competent court for the implementation of a different interim measure if it is deemed necessary to ensure the effectiveness of the judicial protection

3.4.1 Where there are exceptional circumstances and the applicant is able to evidence that there is an exceptionally urgent need and/or that a hearing may jeopardise the effectiveness of the interim measure itself, the court may order the measure without hearing from the respondent (“ex parte”). If the requirements are fulfilled, the interim measure will be ordered by judicial decree within five days of the request, without further formalities and without hearing the respondent. 32 Such an order will be accompanied by a statement setting out the reasons for interim measures and why the court granted them “ex parte”. 

3.4.2 No appeal of any nature may be lodged against the court order adopting interim measures on an “ex parte” basis. If the respondent wishes to dispute the court order, the applicable step is for it to file an objection against the court that issued the order (not an appeal to a higher court). 33

The application for interim measures

4.1.1 The application for interim measures should be formulated clearly and accurately, setting out the prerequisites for their adoption. 34

4.1.2 The CPE does not require the application to comply with specific formal requirements. However, in practice, the structure of said application is similar to the one used in writs in main proceedings and can be divided in two parts:

• Factual basis in which the main facts of the dispute are set out. Jointly with those facts, the applicant may provide any documentary evidence to prove them.
• The second part of the application shall include the legal grounds. In this section, the applicant should define which specific interim measure is requested and prove the existence of all the conditions needed for it to be granted.

4.1.3 Moreover, the applicant should include in the request an offer to provide security, specifying the type or types of security offered and justifying the amount proposed. 

4.1.4 Finally, the applicant may also propose the taking of any other means of evidence to prove the fulfilment of the prerequisites summarised in paragraph 4.3. The submission of the application for interim measures precludes any possibility of proposing new means of evidence. 

Appearance of legal standing 35

4.1.5 The Spanish legislator refers to “Prima facie case” or “fumus boni iuris” as a requirement for interim measures to be granted. 36  The applicant must provide evidence that a verdict in his or her favour is sufficiently likely to be granted at the end of the substantive proceedings.

Risk of delay 37

4.1.6 The Spanish legislator refers to “periculum in mora” (risk of procedural delay). Interim measures may only be granted if the court is satisfied that failure to grant the interim measures sought could lead to circumstances preventing or hindering the effectiveness of the protection that may be granted, and/or the enforcement of an eventual judgment in favour of the applicant. 

4.1.7 In other words, this requirement relates to the risk of damage that the applicant may suffer because of a delay in the proceedings, which may thwart enforcement of the judgment.

4.1.8 The applicant must provide adequate and sufficient proof that the effectiveness of the judicial protection, if eventually given, is at risk should the interim measure not be granted. This may vary depending on each different factual situation.

Satisfactory guarantee or security 

4.1.9 The applicant is required to post security sufficient to compensate, in a speedy and effective manner, any damage that may arise from said measures against the defendant in the proceedings. 38  Despite this general rule, depending upon the circumstances the court may decide that security or a guarantee is not necessary.

4.1.10 For example, in cases where an action for suspension of an activity is filed in defence of the collective and individual interests of consumers and users, the court may decide against the requirement for security. 39  The court will take into account the circumstances of the case and the financial significance and social repercussions of the interests in issue. Another example is the grant of precautionary measures regarding the establishment of parenthood. 40  Aside from these exceptions, 41 the applicant should provide security sufficient to effectively and expeditiously compensate the damage that the relevant measure may cause the respondent.

4.1.11 The court will determine the amount of the security, taking into consideration: (a) the nature and content of the claim; (b) an assessment of grounds and evidence included in the application; and (c) the adequacy of the amount in relation to the damage that could be caused to the respondent if the interim measure is granted. 

4.1.12 The security may be provided by any means permitted by Spanish Law. For example, it may be given in cash, by means of an indefinite joint and several guarantee payable on first demand, or by any other means which, in the opinion of the court, ensures the immediate availability of the amount concerned. 

4.1.13 The security shall at all times be provided prior to the respondent’s compliance with the interim measure. 42

4.2.1 Save in exceptional circumstances (see below), the court clerk will summon the parties to appear at a hearing within five days following receipt of the application by the respondent. 43

4.2.2 This hearing will be held within ten days following the summons. Such a hearing will be expedited within this timeframe even if the court has a backlog of other hearings. This means that, in cases where the potential effectiveness of the requested measure needs the hearing to be held quickly, it shall be heard within 10 days.

4.2.3 At the hearing the applicant and the respondent may make their arguments and submit any evidence, which will be admitted and examined if relevant. They may also request, if they consider it necessary to demonstrate the relevant issues, an inspection by the court (for example, if the applicant considers it necessary to assess the physical condition of specific immovable property, he may request the competent court to relocate to the place where the property is located, and verify those conditions in person). If such evidence is considered relevant but it is impossible for it to be examined at the hearing itself, it will be examined within five days of the hearing taking place. 

4.2.4 In any case, the respondent may argue that the provision of security is sufficient to protect the interests of all parties, as opposed to an interim measure. In that case, the respondent may ask the court to accept an alternative bond instead of the interim measure requested by the applicant (cf. paragraph 5.2 below).

4.2.5 Within five days after the hearing, the court shall issue its decision on the application for interim measures. 44

4.3.1 The applicant shall submit with the application argued grounds and evidence allowing the court to decide whether the applicant has a sufficiently arguable case, without deciding on the merits of the case. 

4.3.2 If no such documentary evidence is available, the applicant may offer other means of evidence, which he will put forward with the application. Other evidence may include witness statements, expert reports and statements by the parties. 

4.3.3 For example, should a claimant wish to receive an asset that is unlawfully being held by a defendant, in the application for the interim measure he should provide the court with documentary evidence including the contract under which he has an interest in the asset. 

5.1.1 The general rule is that the court will resolve the application for interim measures after hearing the respondent. The respondent may present during the hearing all counter-arguments and evidence it deems necessary. The respondent should aim to show that the applicant has not met the prerequisites. 

5.1.2 In cases when the court grants the interim measure without hearing the respondent (“ex parte”), the respondent is entitled to file an objection against the court order adopting the interim measure within 20 days of being notified of the judicial decree granting the interim measure. 45 A hearing shall then be held within ten days following the summons. 46  Finally, the competent court will issue a judicial decree deciding on the objection within a period of five days. The ex parte interim order remains enforceable until the court decides on the objection.

5.2.1 As mentioned above, the respondent may ask the court to accept, as an alternative, sufficient security to protect the interests in dispute. 47

5.2.2 Even if the competent court has already implemented the interim measure requested, the respondent may request to provide security in place of the measure: 48

1. During the objection procedure (if the interim measure has been granted “ex parte”) or; 
2. By presenting a reasoned pleading proving both the respondent’s solvency and the specific risks faced by the respondent as a result of the measure. The brief may be accompanied by documentary evidence deemed necessary. 

5.2.3 Five days after the application proposing substitution of the measure has been notified to the counterparty, the court clerk shall summon the parties to a hearing. 49  Once the hearing has been held, the court shall rule on the request by court order as it deems appropriate, within a time limit of five days.

5.2.4 In deciding whether to accept security instead of the interim measure, the court shall examine the basis for the original application, the nature and content of the claim and the potential legal arguments in the respondent’s favour. The court shall also take into account whether the interim measure would restrict or hinder the entrepreneurial or financial activity of the respondent in a serious and disproportionate manner compared to the guarantee or security.

5.2.5 No appeal whatsoever may be made against the court order either accepting or rejecting the application to substitute security for the interim measure.

5.3.1 The court is required to apply the principle of proportionality. This means that any interim measure that is adopted must not be capable of being replaced by another equally effective but less burdensome measure, which would have less damaging consequences on the respondent. In addition, the scope, content and nature of the interim measure adopted shall be proportionate to the specific circumstances of both parties, and to the events in issue. 

5.4.1 As mentioned above at paragraph 4.1.9, the applicant for the interim measure shall usually be required to provide sufficient security to compensate the damage that the measure may cause to the respondent in a speedy and effective manner. 50  The court ultimately decides upon the suitability and sufficiency of the amount of the security. 51

6.1.1 Interim measures will be normally requested together with the main claim. 52 Nevertheless, they can be requested before the claim has been filed, if the applicant proves urgency and necessity. In this case, the measures adopted shall cease if the main claim is not lodged before the same court that heard the request for interim measures within 20 days following order of the interim measure by the court. In case the main claim is not timely filed, the court clerk shall issue ex officio an order lifting the interim measure, ordering the applicant to pay the respondent’s legal costs and declaring the applicant liable for any damage caused to the entity affected by the measures. 

6.1.2 In contrast, this requirement does not apply in cases of judicial appointment of arbitrators or institutional arbitration. For the interim measures to be maintained in those cases, it shall be sufficient for the party applying for the measure to initiate the process required to commence the arbitration. 53

6.1.3 On a separate note, once a claim has been lodged, or while an appeal is pending, the adoption of interim measures may only be sought when the request is based on facts and circumstances justifying the request. 54  This request will be decided according to the process explained above. 

6.2.1 The CPA does not differentiate between how long the procedure takes for different types of interim measures. In practice, the time it takes for an interim measure application to be heard will very much depend on the workload of the competent court. The procedure should not take longer than a maximum period of six months. 

6.2.2 An interim measure already implemented shall not be maintained if the main proceedings have been delayed or suspended for more than six months, when the delay is due to the applicant’s actions or conduct. 55

6.2.3 Interim measures are accessory to the main proceedings. 56  For this reason, interim measures cannot be maintained once the main proceedings have concluded, except when a favourable judgment for the applicant is given or an equivalent court order. Should that be the case, the interim measures shall be maintained for 20 days after the relevant court orders become final. After this period (without enforcement having been sought) the measures shall be revoked. When the provisional enforcement of a judgment is given, the interim measures previously adopted and related to that enforcement shall cease. 57

7.1.1 If a request for an interim measure is rejected, the legal costs and judicial expenses of the application are borne by the applicant. 58 In the event that the interim measures are granted, no legal costs are imposed on the respondent , but the respondent must bear its own costs in dealing with the application. 59

7.1.2 For the purpose of determining legal costs, two criteria shall be considered: (i) with regard to court attorneys, there are fixed mandatory tariffs based mainly on the amounts discussed in the proceedings and other applicable factors; (ii) regarding lawyers, the Bar Association of each judicial district or autonomous region sets out guidelines for the calculation of fees that serve as recommendations but are almost always observed – in some cases subject to modification by the court.

7.2.1 With respect to the objection against interim measures adopted on an “ex parte” basis, after the hearing is held, the court shall issue a court order deciding on the objection within five days. 60 If it upholds the interim measure adopted, it shall order the respondent to pay the costs of the objection. However, if it lifts the interim measures, it shall order the applicant to pay both the costs and the damage caused by the interim measure.

7.3.1 Each party has to pay the costs and expenses caused by its requests when they accrue. 62 At the conclusion of the proceedings the competent court shall decide which party will finally bear the costs.

7.3.2 The expenses of the proceedings are those payments which directly and immediately arise from such proceedings. 63   Judicial costs refer to the following items:

• Legal fees, including those for the court attorney when required in the proceedings. 64
• The publication of notices, possibly during the course of the proceedings.
• Deposits required in order to lodge an appeal.
• Experts’ fees and any other third party payments.
• Copies, certificates, notes, affidavits and similar documents that may have to be requested in accordance with the law (except those documents required by the court from public registries and records). 
• Customs duties which may be necessary to carry out the proceedings.
• The fee for exercising judicial power, in the cases where it is compulsory.

7.3.3 A third party creditor which has a claim arising from a procedural action may claim such amount from the party owing it, without having to wait for the proceedings to conclude and irrespective of the allocation of such costs by the court. 65

7.3.4 The assessment of costs shall be conducted by the court clerk at the court dealing with the proceeding or appeal, or by the court clerk in charge of the enforcement action. 66 Once the assessment of costs has been conducted by the court clerk, such assessment shall be transferred to the relevant party within the next ten days. 67

7.3.5 If a party wishes to challenge a costs assessment, it must do so within 10 days. 68  Grounds of challenge may include the inappropriate inclusion of items, rights or expenses in the assessment or excessive fees for attorneys, experts or professionals not subject to a fee schedule. 

7.3.6 The party favoured by the costs ruling may still contest the assessment if it considers there was a failure to include any justified costs which were claimed.

7.3.7 The court clerk shall issue a decision either (i) upholding the assessment; or (ii) introducing any changes to the assessment that he considers adequate given the parties’ allegations. 69 There is one further opportunity for appeal at this stage, after which a final decision will be issued by the court.

Right of objection 

8.1.1 As set out above, in cases where the interim measures have been adopted without hearing the respondent, the respondent may file an objection within twenty days of the notification of the court order adopting the interim measures. 70  Even though the respondent is not entitled to appeal this court decision, 71 he may file an objection based on specific grounds. 

8.1.2 The party lodging an objection to the interim measures imposed may put forward, as grounds for the objection, any facts and reasons contrary to the appropriateness, requirements, scope, type and other circumstances of the measure or measures actually adopted, without limitation. 72 Accordingly, the respondent is entitled to include in its defence any appropriate facts and circumstances to rebut that the requirements for the interim measure imposed were met. 

8.1.3 The court clerk will notify the applicant about the respondent’s objection, 73 after which the procedure shall proceed to a hearing of the parties. 74 Once the hearing has taken place, and within the next five days, the court shall decide on the objection brought against the interim measure, and will give its decision (to maintain or to revoke the interim measure) in a court order. That court order may be appealed without suspending the interim measure.

8.1.4 Once the court order upholding the objection is final, and at the request of the respondent, the damage caused by the revoked interim measure shall be determined. 75 After that damage is determined, the applicant for the interim measure shall be ordered to pay these costs. If the applicant does not make this payment, compulsory execution will be made for the relevant amount. 76

In order to calculate the damage suffered the following should be taken into consideration:

1. the respondent’s petition and submission of a list of the damage incurred; 
2. the debtor’s acceptance of the list of damage; 
3. the debtor’s objection;
4. the court order setting out the amount of damage determined; 
5. the petition for setting the monetary equivalent of a non-monetary obligation;
6. when the debtor presents the settlement of his income or revenues of any kind, the creditor shall be notified of it and, if he agrees, the settlement shall be approved by decree and the sum agreed upon for the enforcement of the money shall be paid.  
7. the reporting of an administration. 77

Modification of interim measures

8.1.5 Interim measures can be modified by alleging and proving facts and circumstances that could not have been taken into account at the time of the application, or within the time limit for objecting to them. 78  A formal request must be made for this purpose, which will be followed by a hearing, decision (which can be appealed) and enforcement .79

Revocation of interim measures.

8.1.6 Once the court has decided in favour of the respondent in the first or second instance, the court clerk shall order the revocation of any interim measure adopted. This will take place if the decision is final or if the applicant has not sought the maintenance of the relevant measures or the adoption of any other interim measures at the moment of lodging the appeal against the first instance judgment. 80

8.1.7 Following this, the court would make a decision regarding any damage the respondent may have incurred as a result of the interim measures. 81 The same process shall be followed in cases of withdrawal or abandonment of the proceedings.

8.1.8 If the claim is granted in part, the court will decide on the maintenance, revocation or modification of the interim measures adopted, after having heard the respondent on the matter. 82

Remedy of Appeal 

8.2.1 A judicial decision awarding an interim measure is subject to the remedy of appeal without suspending the measure in question. 83

8.2.2 The applicant may appeal the court order rejecting the interim measure requested. 84  This appeal will be prioritised over ordinary matters pending before the competent court.

8.2.3 No special limitations are applicable other than those regarding the admission of further evidence, which is restricted to:

1. documents that could not have been submitted in the first instance (e.g. they came into existence subsequently);
2. evidence rejected by the court with no legal grounds, if the rejection was successfully challenged;
3. evidence admitted in the first instance not heard by the court due to a cause not attributable to the applicant of said evidence; or
4. evidence referring to facts relevant to the decision of the claim having occurred either after the start of the term for issuing the court order or occurred before said term but known by the parties after that.

8.2.4    The CPA sets out how to determine the competent court to hear the appeal. 85 The courts with jurisdiction over decisions subject to appeal are: 

• Courts of First Instance, when the decisions subject to appeal have been issued by the Magistrates’ Courts of their judicial district. 
• Provincial Courts, when the decisions subject to appeal have been issued by the Courts of First Instance of their judicial district.

Extraordinary Appeal for procedural infringement

8.2.5 If the appeal against the order rejecting the application of the interim measure is also rejected, the applicant may be entitled to appeal the second instance decision via an extraordinary appeal for procedural infringement. The Civil and Criminal Chamber of the High Courts of Justice shall deal with any appeals for a breach of procedure against judgments and court orders issued by the Provincial Courts. 86

8.2.6 An extraordinary appeal for procedural infringement may only be based on the following grounds: 

• Breach of the rules on objective or functional jurisdiction and competence.
• Breach of the procedural rules governing the judgment. 
• Breach of the legal rules governing the procedures and safeguards of the proceedings or an infringement of the right to a fair process, which may render the order null and void. 
• Violation of fundamental rights recognised under Article 24 of the Spanish Constitution. 

Appeal in Cassation

8.2.7 Notwithstanding an extraordinary appeal for procedural infringement, the applicant may appeal the resolution issued by Provincial Courts in cassation. 87

8.2.8 The First Chamber of the Supreme Court has jurisdiction to deal with appeals in cassation on civil matters. 88  However, the Civil and Criminal Chamber of the High Court of Justice shall deal with appeals in cassation against decisions by the civil court located in the autonomous regions (Spain is divided, territorially, politically and administratively, into 17 different autonomous regions, which have judicial and legislative powers), as long as those appeals are based on a breach of the Special Regional Law of that autonomous region on civil matters (if applicable to the case). Appeals in cassation must be based on a breach of the rules applicable to the decision. Judgments issued in the second instance by the Provincial Courts may be appealed in cassation, in the following cases: 89 

• Judgments are issued to grant fundamental rights, except those recognised under Article 24 of the Spanish Constitution. 
• When the amount of the relevant proceeding exceeds EUR 600,000. 
• When the amount in dispute is less than EUR 600,000, yet the judgement (i) contradicts case law of the Supreme Court, (ii) decides on issues in respect of which there is contradictory case law from the Provincial Courts, or (iii) applies rules that have been in force for less than five years, provided that there is no Supreme Court case law concerning previous identical or similar rules. 90

8.2.9 The Supreme Court has jurisdiction to deal with appeals in cassation on civil matters. 91

9.1.1 Once the interim measures have been ordered and the security given, the measures shall be complied with immediately ex officio. A successful applicant can use any means required, including: 

1. the attachment of third party assets;
2. receivership; and 
3. distraint proceedings (proceedings whereby the debtor’s assets are seized in order to force compliance with the order). 92

9.1.2 The debtor is required to submit a statement of its assets unless prejudgment attachment of sufficient assets had been ordered. 93

9.1.3 If other assets can be attached, assets with a value exceeding the amount for which enforcement has been ordered shall not be attached. 94

9.1.4 The attachment of assets shall take place unless the debtor deposits the ordered amount. If the debtor pays the amount once the attachment procedure has been commenced, the attachment will be suspended. 95

9.1.5 Only those assets and rights can be validly attached for which the creditor is able to provide documentary evidence to prove their existence. 96

9.1.6 In case a company or a group of companies is attached, receivership may be ordered by the court. The same applies where shares or stakes representing the majority of the share capital, common stock, assets or rights belonging to the company or group of companies are attached. Receivership may likewise be set up to secure the attachment of proceeds and income. 97

9.1.7 If a precautionary registry notation is required, this will be carried out in accordance with the rules of the relevant Registry.

9.1.8 Depositories, receivers or persons responsible for assets or rights subject to an interim measure may only dispose of them by prior authorisation of the court, and only when exceptional circumstances can be shown that the retention of the assets or rights is more costly than their disposal. 98

Enforcement of interim measures issued by foreign courts of EU Member States

9.2.1 The EU Regulation No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I-bis Regulation) applies for the recognition and enforcement of judgements issued by an EU Member State’s Court – including Danish Courts. 

9.2.2 The Brussels I-bis Regulation provides different rules for the enforcement of interim measures depending on the procedure followed by the Member State’s Court to adopt the interim measures: 

• The interim measures granted may be enforced directly, without the need to initiate a prior exequatur proceeding, provided that said measures have been granted by a court with jurisdiction and after hearing the defendant. Consequently, in this case, the enforcement procedure which needs to be followed to execute the interim measure resolution is the same as for an any other judicial decision. 99
• In contrast, if the interim measure was granted “ex parte” by a Member State‘s Court and the defendant was not (yet) notified, the resolution which grants said measure cannot be considered as a judgement within the meaning of the Brussels I-bis Regulation. Therefore, the interim measure granted cannot have any effect outside the territory of the Member State whose courts issued the judgement. Only once the interim measure granted “ex parte” has been served on the defendant, it may be executed in another Member State. While there is no need to initiate a prior exequatur proceeding, the applicant must provide the court with proof of service on the defendant .100

Enforcement of interim measures issued by foreign courts in non-EU countries

9.2.3 The enforcement of an interim measure judgement issued by a court in a non-EU country is subject to the provisions of the international agreements concluded with such country. If the applicable international agreement denies the possibility to enforce foreign judgments in Spain, it will not be possible to apply domestic rules to achieve this objective.

9.2.4 In the absence of any international agreement with the State in which the interim measure was ordered, domestic rules and, particularly, Law 29/2015 of 30 July on international legal cooperation in civil matters, apply.

10.1.1 The Spanish Arbitration Act explicitly recognises the possibility that the parties may request the adoption of interim measures, both prior to the commencement of the arbitration or during the proceeding, either before the ordinary courts or before the arbitral tribunal, unless otherwise agreed by the parties. 101

10.1.2 Under the CPA, 102 the following persons may apply for an interim measure: 

1. parties to an arbitration agreement reached before the initiation of the arbitration proceedings; 
2. parties in a pending arbitration proceeding in Spain; and 
3. persons having requested the “judicial formalisation of an arbitration". 103

10.1.3 In the event that the applicant requests the adoption of an interim measure from the state courts, the competent court to grant such measure will be the First Instance Court with jurisdiction in the place where the interim measure is to be enforced and, failing that, where the interim measure is to have effect. 104  A request for interim measures before a state court does not amount to a waiver of arbitration. 

10.1.4 The advantage to seek the interim measures directly from the state courts resides on the fact that the courts have the power to enforce said interim measures.

10.2.1 The Spanish Arbitration Acts states that, unless otherwise agreed by the parties, arbitrators may, at request of a party, grant any interim measure deemed necessary in connection with the object of the dispute. However, the arbitral tribunal may require the applicant to provide sufficient security. 105

10.2.2 In case the arbitral tribunal grants an interim measure and the party affected by the measure does not voluntarily comply with it, it is necessary to seek the assistance of the state courts. This is expressly contemplated in the Spanish Arbitration Law, 106 referring in matters of enforcement of interim measures to the provisions that regulate the enforcement of arbitral awards which in turn, refer to the rules set forth in the CPA and previously exposed (see paragraph 9.1 above). 

10.2.3 The jurisdiction to enforce the interim measure previously adopted by the arbitral tribunal lies with the First Instance Court at the place where the decision was issued. 107

10.3.1 Following the provisions of Article 722 CPA, it is considered appropriate for Spanish courts, if they have jurisdiction, to adopt interim measures intended to be instrumental to a foreign arbitration proceeding. The maintenance of the measures decreed depends on the accreditation before the Spanish court of the start of the arbitration proceeding.