Incorporation of jurisdiction clauses in Spain
Jurisdiction agreements in favour of EU courts
The formalism of EU secondary legislation and CJEU case law in the past was overcome by recognising the convenience of commercial usages. Likely due to inattention or a lack of foresight by the Spanish legislators, the SAMN lacks any reference to the Brussels I Regulation (recast), with practical consequences for its application.
There is a problem of normative hierarchy between the SAMN and the SOLI. An ‘organic law’ represents a category of hierarchically superior norm in the Spanish legal system. However, the specialised character of the SAMN creates doubt over the prevalence of the SOLJ by applying the principle of lex specialis derogat legi general!. Conversely, the lex posterior derogat legi priori principle validates the prevalence of the SAMN over the SOLJ. The issue is debatable considering the contradictory provisions of the SOLJ and the SAMN. Their compatibility has to be analysed since the general rule for jurisdiction and the procedural specialty of the SAMN have to be interpreted by Spanish judges in order to provide interpretative guidelines. However, it is accepted that the SOLJ and the SAMN are subordinate to the provisions of international treaties in force in Spain and in the EU that regulate the same matters as Articles 2(1) and 468 SAMN and Article 22 bis (2) SOLJ.
Article 4 bis (1) SOLJ clarifies that ‘the judges and courts will enforce the law of the European Union in accordance with the jurisprudence of the Court of Justice of the European Union’. Moreover, according to Article 21(1) SOLJ, ‘Spanish civil courts will hear claims that arise within Spanish territory in accordance with the stipulations of the international conventions and treaties to which Spain is a party, the regulations of the European Union and Spanish laws’. According to Article 2(1) SAMN: ‘This Act shall be applied as long as it does not oppose the terms set forth in the international treaties in force in Spain and the legal provisions of the European Union that regulate the same matters’. Therefore, the current situation is not affected by internal legislative changes, acknowledging the validity of the clause of submission to a foreign jurisdiction or arbitration abroad in any of the forms required.[1]
Both Article 22 bis (2) SOLJ and Article 468 SAMN contain a rule concerning the express choice of jurisdiction agreements displaced by Article 25 of the Brussels I Regulation (recast) in the absence of applicable international agreements. As already mentioned in relation to the incorporation of choice of forum clauses in the EU, Article 25 of the Brussels I Regulation (recast) leads to the prorogatio fori by allowing the parties, regardless of domicile, to agree to submit their disputes to the courts of an EU
Member State.[2] Moreover, a submission agreement drafted in a contract is considered to be independent of other clauses of the contract and can still be enforced even if the contract as a whole is declared null or invalid (Article 25(5) of the Brussels I Regulation (recast)).
A derogatio fori effect takes place if the claimant starts proceedings in a tribunal other than the nominated one, staying the proceedings under the lis alibi pendens rules of Article 31(2) of the Brussels I Regulation (recast) unless the defendant enters an appearance according to Article 26 (implied choice of court agreement). Any clause in a contract for use of a vessel or an auxiliary navigation contract conferring jurisdiction over a particular dispute to an EU Member State court, regardless of whether the parties have their domiciles in the EU, will be governed by its provisions in terms of formal validity.
The validity of a foreign jurisdiction clause included in a B/L is guaranteed by Spanish courts mainly by application of the CJEU doctrine. The interpretative doctrine of the Spanish Supreme Court is set out in the judgments of 29 September 2005 (case JR 2005/7156, respecting the trade usages of the sector), 2 August 2007 (case RJ 2007/558, where a dispute resolution clause was included on the reverse of a B/L), 7 June 2007 (case RJ 2007/5431, admitting the validity based on usages of the commercial sector) and 16 May 2008 (case RJ 2008/3080, admitting a choice of forum clause ‘when it turns out that both the way to insert such conditions and the express clause itself are common in maritime trade’).
In the Spanish Supreme Court case of 27 May 2008 (case RJ 2008/4155), the validity of the clause of attribution of competence was accepted by compliance with Article 17(a) of the Brussels Convention, requiring the written consent of the contracting parties: ‘According to the Court of Appeal, the agreement of the parties had been proved, despite the absence of signature of the shipper, because the clause appeared on the front of the contract and in bold, perfectly highlighted’. However, there are some ‘shocking’ exceptions, in the words of Iraculis.
The validity of jurisdiction clauses is recognised in Orders of the Provincial Courts of Madrid of 16 January 2012, 19 September 2014 and 2 September 2015; and in Orders of the Provincial Court of Pontevedra of 2 April 2010,[3] 19 May 2011 and 19 January 2016.14S Other judgments that recognise jurisdiction clauses were issued by the Provincial Court of Valencia of 8 November 2016 and the Provincial Court of Barcelona of 21 December 2016.
The same criteria are followed by Orders of the Commercial Courts No 1 of Barcelona of 4 March 2015 and No 6 of Madrid of 13 September 2016 and 5 July 2019, confirming the validity of the choice of forum clauses in favour of intra-EU Member State courts.
- [1] Albeit Badia, ‘Jurisdicción y competencia’ in Julio Carlos Fuentes Gómez and others, Comentarios a la Ley de Navegación Marítima (Dykmson 2015) 426. The author remarks on the minimum formal requirements set up by the EU regulatory framework and case law concerning attributive clauses of jurisdiction; Nerea Iráculis Arregui, ‘La controvertida negociación individual y separada de las cláusulas de jurisdicción y arbitraje en la Ley de Navegación Marítima’ (2017) 19 Revista de derecho del transporte: Terrestre, marítimo, aéreo y multimodal 173. 2 See Federico Garau Sobrino, ‘Los acuerdos atributivos de jurisdicción en Derecho Procesal Civil Internacional Español’ (2010) 2(2) Cuadernos de Derecho Transnacional 52; Juan José Álvarez Rubio, ‘A correct jurisprudential orientation m relation to the validity and scope of the submission clause in favour of a foreign court contained in a bill of lading. Commentary on the Judgment of 13 February 2019 of the Provincial Court of Barcelona (Section 15)’ (2019) 11(2) Cuadernos de Derecho Transnacional 388, 396.
- [2] Pedro Alberto De Miguel Asensio, ‘El nuevo reglamento sobre competencia judicial y reconocimiento y ejecución de resoluciones’ (2013) 34(8013) La Ley 1; Ana Paloma Abarca Junco, ‘La competencia judicial de los tribunales españoles: Foro de la autonomía de la voluntad’ m Ana Paloma Abarca Junco and others (eds) Derecho Internacional Privado (UNED 2013) 134. 2 Álvarez Rubio, ‘A correct jurisprudential orientation in relation to the validity and scope of the submission clause in favour of a foreign court contained in a bill of lading’ (n 138) 397. 3 Zumnendi Isla (n 72) 239-263. 4 A judgment of 31 May 2012 (Case RJ 2012/4155) dismissed the validity of a choice of Saudi Arabian jurisdiction in the B/L under the pretext of it breachmg the requirements set out in Article 23 Brussels I Regulation, since the signature of an employee of the shipper and its stamp on the back of the B/L did not constitute express consent, upholding the criteria adduced in the Court of Appeal’s judgment; Iráculis Arregui (n 137). 5 Case AC 2012/437, where it was considered irrelevant that only the carrier signed the B/L, smce it was regularly issued and received as in compliance by the shipper. 6 Case JUR 2015/247406, where it was held that the copies of the B/L did not include the signature and stamp of the parties because the parties consented on the content of an already-executed contract, and the B/L is just die instrument to externalise their will. 7 Case JUR 2015/248567, where an incomplete B/L was presented by the claimant.
- [3] Case JUR 2010/135394 follows the doctrine established by the Supreme Court case of 8 February 2007. 2 Case JUR 2012/399815, dealing with a valid choice of English jurisdiction, deemed ineffective by subsequent miphed submission. 3 Case JUR 2016/62443, in which an English jurisdiction clause in writing was incorporated into a B/L that documented an international contract for the carnage of goods by sea. 4 Case JUR 2017/14921, where the B/L included a submission to the English courts, and its nullity was invoked according to Article 468 SAMN by unilateral imposition, confimung its validity according to CJEU case law and the doctrine of the Spanish Supreme Court and Provincial Court, citing the Orders of 27 July 2016 issued in the Rolls of Appeal 450/2016 and 1271/2016, emphasising that the exammation of validity' of a jurisdiction clause in the field of maritime transport must be earned out individually in each specific case, not always depriving the Spanish courts from substantive jurisdiction. 5 Case JUR 2017/79290, deahng with the termination of a distribution contract containing a German jurisdiction clause, declaring a lack of territorial jurisdiction of the German courts, reversing the validity of the clause in the first instance. 6 Case AC 2015/1066 included a submission to the court of Marseilles, France. 7 In Case JUR 2016/209381, the B/L contammg a submission clause to the High Court of England and Wales that was similar to previous formalised ones between the parties, under Article 23(1) of the Brussels I Regulation, now Article 25(1) of the Brussels I Regulation (recast). 8 In Case AC 2019/1354, the Spanish branch of Zurich Insurance PCL brought a subrogated claim against AP Moller-Maersk A/S for damage suffered to cargo earned by sea. The court dismissed the allegations by Maersk and recognised the validity' of a choice of forum agreement in favour of the High Court of Justice in London included m the B/L, even if the shipper did not know about such clause until the cargo arrived to the port of destination. Tins commensurate with the trade usage in the maritime sector, and the Provincial Court of Madrid applied Article 25 of the Brussels I Regulation (recast) relying on CJEU case law; for an extensive analysis of the judgment and the lack of adequacy' of the SMAN in relation to the Brussels I Regulation (recast), see Nerea Magallon Elosegui, ‘Agreements Conferring Jurisdiction m Favour of a Foreign Court Included in a Bill of Lading: Customs and Contractual Freedom m the Maritime Sector: Commentary on the Order of 5 July 2019 of the AAP de Madrid (Section 28)’ (2020) 12(1) Cuademos Derecho Transnacional 619. 9 Iraculis Arregui (n 137).
