October 12 2010
In the context of private international law, and in view of the need of different countries to maintain international relations and apply their laws beyond their borders, it is possible to execute court orders issued abroad in Guatemala.
Many legal systems have developed different theories in relation to this issue. For example, the Dutch system establishes the need for reciprocity between states, while other countries have developed the exequatur procedure.
In Guatemala, following the issuance of Law Decree 107 of the Civil and Mercantile Procedural Code, the process to execute a decision made by a foreign court has been simplified. Previously the process was governed solely by the International Private Law Code of 1928 (better known as the Bustamante Code), which, in Title 10, Chapter One, governs the execution of decisions made by foreign courts in civil matters. The major difference between the new process and that established by the Bustamante Code is that before initiating the execution process, it was necessary to allow a 20-day period to hear the parties and the Public Ministry. This process led to numerous delays, due to both the need for a hearing and the possible appeals that might be filed.
Under the process set down in the Civil and Mercantile Procedural Code, decisions made by foreign courts have the same value that the legislation or jurisprudence of the country of origin would award to decisions made by the Guatemalan courts, except where ratified international treaties that expressly establish the validity of these decisions are in place.
For a foreign decision to be executed in Guatemala, it must comply with the following conditions:
The judge responsible for the execution of a decision made by a foreign court is the judge who would be competent to hear the case if it had been tried in Guatemala. Therefore, in the case of a personal, civil or mercantile action, the competent judges would be the first instance judges of the Civil and Mercantile Court. In Guatemala, there is no special exequatur procedure under any specific or dependent body of the Supreme Court of Justice.
The foreign court decision must be accompanied by an execution request that complies with the necessary formal requirements, legal procedures and certificates, such as translation into Spanish, a certification of signature authenticity and a consular certificate, since Guatemala is not a member of the Hague Convention.
In theory, given that it is a court decision, the process should be executed through the compulsory executory process, which requires immediate compliance with the obligation and limits the filing of defences to exceptions refuting the documentary effectiveness of the decision. However, this will depend on the issue addressed in the decision. For example, if it is a personal action related to the marital status of a person (eg, a divorce decision), the execution will be different and will involve the National Civil Registry of Persons. In such cases, the decision is not executed but rather acknowledged.
The international significance of being able to execute in Guatemala decisions made by foreign courts is clear; it strengthens international relations of a private, commercial and economic order as it helps to resolve private conflicts.
For further information on this topic please contact Juan José Porras or Lourdes Maria Rodriguez at Palomo & Porras by telephone (+1 502 2279 7474), fax (+1 502 2279 7475) or email (firstname.lastname@example.org or email@example.com).
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Juan José Porras
Lourdes Maria Rodriguez Tobias