Aplicación judicial del Derecho extranjero en España. Consideraciones críticas

Abstract

This study analyses the art. 33.3 of the Spanish Act 29/2015 of 30th July 2015, on international legal cooperation in civil matters. This legal instrument has dealt with the problem that arises when foreign law is applicable to the merits of the case but this law cannot be proven. This work shows that the provision above has not solved in any way the question of what to do when the parties could prove the content of the foreign law but they refuse to do so. Therefore, the previous disparity of criteria in the Spanish case law on the problem is maintained. This study emphasizes that the Spanish law maker did not assume the necessary consequences of the mandatory nature of the Spanish conflict rules and the fact that, in the Spanish conflict of law system, the parties must prove the foreign law when applicable.