Competence of consuls in cases of voluntary jurisdiction in comercial law : history, tradition, present state and convenient reform

Abstract

Consuls and Consulate are a historic institution of Roman Public law, with origins in Rome during the Republic, where it was consolidated and then extinguished. In the Low Middle Ages it arose as private right, and arrived in Spain from the Italian Republics, to defend the juridical interests of the merchants who would exercise a «special» private law which they would apply within a «special privileged mercantile jurisdiction «which would govern juridically «their» matters, whether of contentious or voluntary jurisdiction. In the 19th century, this institution became public in order to defend the commercial interests of the State, in the foreign country where its Consulates were situated. In 1868 The Mercantile Jurisdiction disappeared its jurisdiction was subsumed into that of the Ordinary Civil Jurisdiction of the Court. Since then, Consuls and Consulates are an institution of public law and are servants of the Ministry of Foreign Affairs to defend of the commercial interests of Spaniards, in the country where they are located. The LEC 1881 entrusted them the voluntary jurisdiction in mercantile matters, that today are still «in force» but exist in fact simply as «obsolete memories» of a bygone era. The approaching reform of this voluntary jurisdiction may be a pretext to entrust to our consuls and diplomatic personnel of our embassies, competence «in almost all matters» when they are requested by Spaniards who are located in those countries.