SPAIN Law and Practice Contributed by: Verónica Meana, José Antonio Domínguez, Enrique Ortiz and Mikel Garteiz-goxeaskoa, Aiyon Abogados
6. Enforcement of Law and Jurisdiction and Arbitration Clauses 6.1 Enforcement of Law and Jurisdiction Clauses Stated in Bills of Lading Validity of Jurisdiction Clauses Stated in Bills of Lading Subject to the provisions of international con - ventions in force in Spain and EU Regulations, which prevail over Spanish domestic law, the SSA establishes that, jurisdiction clauses in bills of lading, whether to a foreign jurisdiction or foreign arbitration, are considered null and void unless they are negotiated separately and individually. Furthermore, even in cases where the shipper named in the bill of lading may have negotiated separately and individually with the carrier a clause submitting any dispute to a foreign juris - diction or international arbitration, Article 251 of the SSA establishes that the conveyance of the bill of lading to the consignee implies the conveyance of all the rights and actions of the shipper except for any arbitration or jurisdiction agreement, which requires the express and writ - ten consent of the transferee or holder of the bill of lading. Exceptions to the foregoing are those submis - sion clauses that refer any dispute under a bill of lading to the jurisdiction of a court of a member state of the EU. These clauses are considered valid between the parties to the contract of car - riage, shipper/consignee and carrier, even if not separately and individually negotiated, based on Article 25 of Regulation (EU) No 1215/2012, of 12 December 2012, on jurisdiction and the rec - ognition and enforcement of judgments in civil and commercial matters.
A recent ECJ Judgement dated 25 April 2024 (in the cases C-345/22 to C-347/22) has con - firmed that jurisdiction clauses in bills of lading are enforceable under EU law if validly agreed by the shipper and the carrier. The validity of these clauses is governed by the law of the member state whose courts are designated in the clause. For a jurisdiction clause to be enforceable against a third party, such as the consignee, the latter must have subrogated in all rights and obli - gations of the shipper under the contract of car - riage. The determination of whether such sub - rogation occurs must be judged by the national law applicable to the contract, as determined by private international law. Furthermore, the ECJ has established that Spanish courts must disre - gard Article 251 and Article 468 of the SSA when in conflict with Article 25 of Brussels I-Bis. In line with the above findings, the Court of Appeals of Pontevedra, who had to apply Span - ish law to determine the effects of the convey - ance of the bill of lading to a consignee, conced - ed in its judgment dated 16 September 2024, that Article 25 of Brussels I-bis eliminates the requirement for the consignee and third-party holder of the bill of lading to express their con - sent individually and separately. Validity of Law Clauses Stated in Bills of Lading Law clauses stated in bills of lading are recog - nised 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 a foreign legislation does not imply that the analysis of the validity of a poten - tial foreign jurisdiction or international arbitration clause should be made from the perspective of such a law (eg, the Judgment by the Court of Appeals of Barcelona No 1463 of 2019 dated 23 July 2019).
540 CHAMBERS.COM
Powered by FlippingBook