SPAIN Law and Practice Contributed by: José Antonio Domínguez, Mikel Garteiz-Goxeaskoa, Enrique Ortiz and Irantzu Sedano Beitia, Aiyon Abogados SLP
bis eliminates the requirement for the consignee and third-party holder of the bill of lading to express their consent individually and separately. Validity of Law Clauses Stated in Bills of Lading Law clauses stated in bills of lading are recognised by Spanish courts and are enforceable against both the shipper and the holder of the bill of lading. Having said this, the fact that a bill of lading remits to foreign legis - lation does not imply that the analysis of the validity of a potential foreign jurisdiction or international arbitra - tion clause should be made from the perspective of such a law (eg, Barcelona Court of Appeals judgment No 1463/2019, dated 23 July 2019). If an action is brought before a Spanish court, the court will apply Spanish conflict of law provisions to determine the validity of the jurisdiction clause. If the court decides that Spain is competent to hear the matter, the Spanish court may and will apply the provi - sions of a foreign legislation (to the merits of the claim) if the parties have agreed to that legislation. It will be for the parties to provide evidence of the content of that legislation for the Spanish court to apply. This is usually done by means of two sworn affidavits issued by jurists. 7.2 Enforcement of Law and Arbitration Clauses Incorporated Into a Bill of Lading An international arbitration clause incorporated into a bill of lading will have to be separately and individually negotiated by the shipper and the consignee in order to be valid. To date, there are no definitive judgments addressing the implications of Articles 468 and 251 of the SSA in the specific context of international arbitra - tion clauses included in bills of lading. It must be noted, however, that the SSA requires only individual and separate negotiation of a submission clause when they pertain to international jurisdiction or arbitration. It does not impose this requirement for domestic jurisdiction or arbitration clauses, suggest - ing that, in principle, such clauses should be consid - ered valid between a carrier and the consignee. There is, however, no consolidated case law to this effect to date. Furthermore, even if a domestic jurisdiction or arbitration clause is considered to be valid against the shipper in principle, this does not necessarily extend
to the holder of the bill of lading, and the question yet to be answered by Spanish courts is whether a domestic jurisdiction or arbitration clause will also need to be negotiated separately and individually by the holder of the bill of lading in order to be valid towards them. 7.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is appli - cable in Spain for international arbitration. Spain has also enacted the Arbitration Act (Law 60/2003) for domestic arbitration and for international arbitration, which adapts the UNCITRAL Model Law on International Commercial Arbitration. 7.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Following the 1999 Arrest Convention, a ship may be arrested in Spain for the purpose of obtaining secu - rity, notwithstanding that, by virtue of a jurisdiction clause or arbitration clause in any relevant contract or otherwise, the maritime claim is to be adjudicated in a state other than Spain. Article 474 of the SSA also confirms this principle. If the vessel is arrested in Spain, however, Spanish courts will be considered to have jurisdiction over the claim unless the parties validly agree or have validly agreed to submit the dispute to a court of another state that accepts jurisdiction, or to arbitration. 7.5 Domestic Arbitration Institutes Spain does not have a dedicated domestic arbitra - tion institute specialising in maritime claims. There - fore, parties seeking arbitration typically engage the general arbitration services provided by the Arbitra - tion Courts of the Chambers of Commerce or other non-specialised arbitration institutions. The Spanish Maritime Law Association is currently promoting arbi - tration in maritime matters in collaboration with the Madrid International Arbitration Center–Ibero-Ameri - can Arbitration Center (CIAM-CIAR), which offers an independent service for the resolution of international disputes
582 CHAMBERS.COM
Powered by FlippingBook