SPAIN Law and Practice Contributed by: Verónica Meana, José Antonio Domínguez, Enrique Ortiz and Mikel Garteiz-goxeaskoa, Aiyon Abogados
6.3 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards The 1958 New York Convention on the Recogni - tion and Enforcement of Foreign Arbitral Awards is applicable in Spain for international arbitration. Spain has also enacted Law 60 of 2003 (the “Arbitration Act”) for domestic arbitration and for international arbitration, which adapts the UNCITRAL Model Law on International Com - mercial Arbitration. 6.4 Arrest of Vessels Subject to Foreign Arbitration or Jurisdiction Following the 1999 Arrest Convention on the arrest of ships, a ship may be arrested in Spain for the purpose of obtaining security, notwith - standing that, by virtue of a jurisdiction clause or arbitration clause in any relevant contract, or otherwise, the maritime claim is to be adjudi - cated in a state other than Spain. Article 474 of the SSA also confirms this principle. However, if the vessel is arrested in Spain, Span - ish 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 which accepts jurisdiction, or to arbitration. 6.5 Domestic Arbitration Institutes Spain does not have a dedicated domestic arbi - tration institute specialising in maritime claims. Parties seeking arbitration therefore typically engage the general arbitration services provid - ed by the Arbitration Courts of the Chambers of Commerce or other non-specialised arbitration institutions. The Spanish Maritime Law Associa - tion is currently promoting arbitration in maritime matters in collaboration with the Madrid Interna - tional Arbitration Centre (the Iberoamerican Arbi -
If an action is brought before a Spanish court, the court will apply Spanish conflict of law provi - sions to determine the validity of the jurisdiction clause. If the court decides that Spain is com - petent to hear the matter, the Spanish court may and will apply the provisions of a foreign legis - lation (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. 6.2 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 to be valid. To date, there are no definitive judgments addressing the implica - tions of Article 251 and Article 468 of the SSA in the specific context of international arbitration clauses included in bills of lading. However, it must be noted that the SSA only requires individual and separate negotiation of a submission clause when they pertain to inter - national jurisdiction or arbitration. It does not impose this requirement for domestic jurisdiction or arbitration clauses, suggesting that in princi - ple these clauses should be considered valid between a carrier and the consignee. However, there is no consolidated case law to this effect yet. Furthermore, even if in principle a domestic jurisdiction or arbitration clause is considered to be valid against the shipper, this does not nec - essarily extend to the holder of the bill of lading and the question yet to be answered by Span - ish 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 to be valid towards them.
541 CHAMBERS.COM
Powered by FlippingBook