Merry Christmas and Happy New Year 2024

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Notes to the Judgments of the CJEU and the High Court KBD of England on the Prestige Case

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The English Court does not apply the doctrine of the CJEU which confirmed the possibility of recognising the Spanish conviction in the Prestige case in England.

The environmental tragedy of the M/T Prestige initiated a long-running legal dispute between the insurer of the M/T Prestige (The London Steam-Ship Owners’ Mutual Insurance Association Limited, hereinafter “the Club”) and Spain, through two different proceedings in two Member States at the time, the United Kingdom and Spain.

This article is based on Spain’s application to the UK courts in 2019 under Article 33 of “Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters” to recognise and enforce the Spanish court’s judgment. This decision was the Enforcement Order of 1 March 2019 of the Provincial Court of A Coruña enforcing its previous judgment, confirmed in cassation by the SC on 19 December 2018. It condemned the Master, the owners of the Prestige and the Club against the Spanish State and more than 200 other parties. As far as the Club was concerned, up to the contractual limit of USD 1 billion on the basis of the insurance policy.

The High Court of Justice Business and Property Courts of England and Wales Commercial Court (hereinafter High Court KBD) granted that application in May 2019, which was ultimately appealed by the Club on the basis of two main arguments under art. 34 of Regulation No 44/2001: (i) argument of incompatibility with the English judgment (ii) recognition of the Spanish judgment would be contrary to English public policy principles for violation of the res judicata rule.

At this procedural stage, the High Court KBD referred a question to the CJEU for a preliminary ruling, in relation to the interpretation of Regulation 44/2001, as to whether the recognition and enforcement in the UK of the sentence imposed in Spain could be refused, due to the existence in the UK of an award and a subsequent judgment upholding it, the effects of which were irreconcilable with the Spanish judgment.

The CJEU ruled on 20 June 2022 that a judgment given by a court of one Member State (UK) on the terms of an arbitral award cannot prevent the recognition, in that Member State, of a decision given by a court of another Member State (Spain), where provisions or objectives of Regulation 44/2001 have been contravened.

Therefore, the English courts had indeed to recognise and enforce the said Order of Enforcement of the AP de A Coruña, since the arbitration award on the terms of which the English judgment was rendered would have infringed certain provisions of Regulation No 44/2001, namely (i) the effect of the arbitration clause inserted in an insurance contract since, according to the CJEU’s own case law, an agreement conferring jurisdiction concluded between an insurer and a policyholder cannot bind the person injured by the insured damage and (ii) the rules of lis pendens since, when the arbitration award was entered into, the insured person cannot be bound by the arbitration award, an agreement conferring jurisdiction concluded between an insurer and a policyholder cannot bind the person injured by the insured damage and (ii) the rules of lis pendens since when the arbitration proceedings were brought in the UK (16 January 2012), proceedings between the Spanish State and the Club were already pending before the Spanish courts. Therefore, in accordance with Article 27 of Regulation 44/2001, the English courts should have suspended the proceedings ex officio until the Spanish courts had declared themselves to have jurisdiction and, if they did so, as was the case, they should have declined jurisdiction in favour of the Spanish courts.

Following the preliminary ruling, the High Court KBD decided on 06 October 2023 on the appeal lodged by the Club:

i). That they were irreconcilable judgments, given that the English judgment declared that under the “pay to be paid” clause, as the shipowners had not paid any amount, the Club was not liable to Spain and the Spanish judgment maintains that the Club is liable to Spain. These positions cannot coexist and therefore, both judgments are irreconcilable and thus, in accordance with art. 34 of Regulation 44/2001, the Spanish judgment can neither be recognised nor enforced in England.

ii). The English judgment in line with the arbitral award is res judicata and as Regulation 44/2001 excludes arbitration from its regulation, the existence of potentially inconsistent decisions and lack of coordination with future arbitral awards is assumed by the Regulation. Furthermore, it understood that since the Regulation does not apply to arbitration, the English court’s decision to ratify the arbitral award did not alter the provisions of the European Regulation.

It also considers that the CJEU, in its ruling on the question referred for a preliminary ruling, exceeded the scope of the questions referred for a preliminary ruling, and purported to apply the law to the facts, which is outside its competence (reserved to the Member States). Considering that the CJEU had exceeded its powers, the High Court KBD considered that it was not bound by its decision.

In conclusion, we must remember that the interpretation issued by the CJEU is binding on the court that asked the question for a preliminary ruling, which may not, under any circumstances, depart from it or ignore it, either on its own initiative or because it is instructed to do so by a hierarchically superior court, and that in the future, this interpretation of the CJEU will be the one that will be applied in the EU. However, the English judgment may be seen as opening a small door to legal uncertainty if it allows a Member State to unilaterally consider that the CJEU has exceeded its powers and that its decision is therefore not binding on it, without prejudice to any liability it may incur for breach of Community law.

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ASETRABI counts on its collaborator, AIYON Lawyers, to analyse safety and efficiency in road transport

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On 30 October, the Bizkaia Transport Business Association, ASETRABI, held a conference on efficient driving and load stowage, with speakers including our partner in Bilbao, Zuberoa Elorriaga, as well as Andoni Gortazar, representing the Institute for Load Safety (ISEC), among other professionals from the land transport sector. This is an entity with which our firm also collaborates.

As part of the interesting training sessions that ASETRABI is holding this autumn in Bilbao, all of them of great interest due to the topics covered (loading and stowage, driving efficiency, decarbonisation, alternative fuels, etc.), on this occasion AIYON Abogados has been involved to explain to the participants of the event the complexity of the tasks and actions related to loading and stowage on lorries, all from a legal point of view.

For her part, Zuberoa tried to convey to the listeners the legal vision of stevedoring offered by the applicable international and national regulations, as well as the jurisprudential interpretation made by Spanish judges of the different regulations, always assessed on a case-by-case basis. This is because the extensive experience accumulated by our firm in more than eight years of activity always offers our lawyers a direct contact with the problems, as well as with each of our clients. This allows us to have a very close, as well as practical, view of the problems experienced in the road transport sector from all angles (shippers, receivers, carriers, insurance, etc.), which enables us to provide an appropriate and personalised solution in each of the consultancy services we offer.

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AIYON Abogados Moves to New Office in Algeciras

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AIYON Abogados recently gathered in Algeciras part of its team of eight professionals from its offices in Madrid, Bilbao, Cadiz and Algeciras to inaugurate its new location in Algeciras and to share with its customers in the Algeciras enclave the good news that always comes with the opening of new facilities and the incorporation of a new professional to the team, as is the case of Rocío López.

Along with local lawyers Jose Antonio Domínguez and Rocío López, the event was attended by partners Mikel Garteiz-goxeaskoa and Zuberoa Elorriaga, from the Bilbao office; Madrid partner Verónica Meana; and partner and head of Cádiz, Enrique Ortiz, with his colleague Pablo Sánchez.

José Antonio Domínguez, director of the Algeciras office, frames these new developments in the firm’s commitment to improve the service provided to its clients in the area of influence of the Port of Algeciras, among which are shipowners, insurance companies, inland hauliers, forwarding agents, shipping agents, logistics operators, stevedores, shippers and, in general, all types of companies dedicated to international trade and the transport of goods.

“The strategic importance of Algeciras, where our clients have a very important presence, justifies the growth of our team and the improvement of our facilities,” says José Antonio Domínguez, partner in charge of the office.

Algeciras, a strategic location
As one of the most important ports in Spain and located on one of the strategic routes for international trade, the Port of Algeciras is key both for North-South traffic, with an abundant flow of goods to and from Morocco on the various ro-ro shipping lines operating in the Strait of Gibraltar, and for East-West traffic on the major containerised goods traffic routes, being an important hub port.

Algeciras is, on the other hand, a very important bunker or bunkering port in the Mediterranean, with shipyards and an anchorage where ships can make provisions or carry out repairs of all kinds.

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AIJA is held in Athens (Greece) with one of our lawyers as speaker

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As planned, the AIJA (International Association of Young Lawyers) Transport Seminar took place in Athens on 14-16 September.

It was a joint event in which the Arbitration Commission and the Public Procedure Commission also participated, bringing together more than 150 young international lawyers. Among them were our colleagues from AIYON Algeciras and AIYON Bilbao, Rocío López and Irantzu Sedano respectively. The latter is an active member of AIJA.

Both lawyers enjoyed six conferences dealing with relevant and topical issues in the transport sector, with the contribution of more than twenty professionals and experts in the field. Among them, the talk on “Blockchain”, “Double Twins” and Autonomous Transport, in which our colleague Irantzu Sedano actively participated as a speaker along with other colleagues from the association, deserves special mention.

In addition to the conferences and the work carried out by the commissions, the participants were also able to enjoy a wide range of leisure and local culture in their free time.

We would like to thank AIJA, and the entire organising committee of the event, for their work and dedication in carrying out this type of international event, which undoubtedly contributes to enriching greatly the transport sector and the professionals that make it up.

Practical Application of the Law on Late Payment in Land Transport (Law 13/2021)

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The partial amendment of the Land Transport Law for the purpose of combating late payment in the field of road freight transport by application of the content of Law 13/2021, of 1 October, arose, among other reasons, from the need to solve the problem of late payment of commercial transactions in Spain, which amounts, let us remember, to an average of 90 days and is therefore in breach of the European regulations applicable to these transactions.

With effect from 3 October 2021 and on the general basis that any agreement on payment terms longer than 60 days can be considered null and void, even in companies belonging to the same group, this law creates a new type of offence providing for penalties for those cases in which the legal maximum payment limit is not respected and therefore does not comply with the provisions of Law 13/2021 (article 4) and the Land Transport Law (article 140).

Having said that, we can currently state that this regulation is already having tangible practical consequences, as in Aiyon we have had several consultations related to administrative sanctioning proceedings initiated by the General Directorate of Land Transport against road transport companies, in their capacity as subcontractors of land transport with other effective carriers.

Thus, following inspections carried out locally by the Administration in certain land transport companies, it has been observed that their contractors did not pay the invoices issued for their services within this 60-day period, which is why the inspection has initiated infringement proceedings against the debtors, warning them of this breach of the applicable regulations.

Administrative sanctioning proceedings which, although they can be defended, do not leave much room for refuting the position of the administrative inspector since, when this legal limit is exceeded within the different parameters for calculating the sixty days, little can be said in defence of the debtor’s position.

The fact that there is an agreement, express or implied, between the two carriers involved to relax this time limit upwards, or that there is a prior dispute between shipper and contract carrier that prevents the contract carrier from charging for the carriage, which could be considered a reason to condition the payment of its service to the actual carrier, we do not consider these to be valid excuses in law to justify the use of a longer payment period.

Once the accounts of a transport company have been randomly inspected, or after a complaint by the creditor, the Directorate General for Land Transport will notify those companies that have paid invoices outside the legal deadline of the initiation of the corresponding sanctioning procedure against them, proposing penalties which, in our experience, have ranged between € 2, 001.00 and € 3,000.00  (depending on different factors such as the excess over 60 days, the number of invoices pending payment, etc.), being classified as very serious offences under the Land Transport Law.

In view of the above, it is important to remind operators of the importance of respecting this regulation and of always regularising outstanding payments to road hauliers within the non-mandatory legal deadline (60 days), establishing internally adequate measures to avoid being sanctioned now or in the future.

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Reform of Civil Cassation following the entry into force of the Royal Decree-law 5/2023

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The Royal Decree-Law 5/2023 of 28 June adopting and extending certain measures in response to the economic and social consequences of the war in Ukraine, to support the reconstruction of the island of La Palma and other situations of vulnerability, to transpose European Union Directives on structural modifications of commercial companies and the reconciliation of family and professional life for parents and carers; and on the implementation and enforcement of European Union law, which came into force on 29 July 2023, introduces, among others, a series of modifications in the regulation of civil proceedings, especially in the regulation of civil cassation, the purpose of which is to make the processing of appeals more agile and to relieve the Supreme Court.

One of the main changes is the elimination of the extraordinary appeal for procedural infringement, as separating the reporting of procedural infringements from substantive infringements is not considered operative. Although RDL 5/2023 does not include a provision expressly repealing articles 468 to 476 and the sixteenth Final Provision of the Spanish Civil Procedure Act regarding the extraordinary appeal for procedural infringement, the fact is that these provisions must be understood to be repealed due to their manifest incompatibility with the new regulation about cassation’s appeal and in accordance, moreover, with the sole general repealing provision of RDL 5/2023.

On another note, the new regulation about cassation’s appeal includes the limitation of appealable decisions to two, on the one hand, “judgments that put an end to the second instance dictated by the Provincial Courts when, in accordance with the law, they must act as a collegiate body” and, on the other hand, “orders and judgments handed down on appeal in proceedings on the recognition and enforcement of foreign judgments in civil and commercial matters under international treaties and conventions, as well as under European Union regulations or other international rules, when the power to appeal is recognised in the corresponding instrument”.

A limitation is also introduced in relation to the means of access to the appeal, specifically, these channels of access are reduced to two: the first channel requires the appeal to have a cassation interest and the second requires the appealed decision to have been issued for the protection of fundamental rights that can be protected even when there is no cassation interest, thus eliminating the previous channel of access to appeal for an amount greater than 600,000 euros.

On the other hand, according to the modifications introduced by RDL 5/2023, there is a cassation interest when the contested decision infringes the case law of the Supreme Court, when it resolves issues on which there is contradictory case law of the Courts of Appeal (“Audiencias Provinciales”) or when rules are applied on which there is no case law of the Supreme Court, in the latter case removing the requirement that the rule on which there is no case law has not been in force for more than five years.

Likewise, it will also be possible to appreciate a notorious cassation interest when the contested decision has been issued in a process in which the disputed issue is of considered of “general interest”, that is to say, when the issue potentially or effectively affects a large number of situations, either in itself or because it transcends the case that is the object of the process.

This new regulation of the appeal in cassation eliminates the possibility to challenge the admission or rejection of the appeal. The Admissions Chamber of the Supreme Court will simply limit itself to admitting the cassation by means of an order expressing the reasons why it must rule on the issue or issues raised in the appeal or, where appropriate, to rejecting the cassation by means of a succinctly reasoned order which will declare, where appropriate, the finality of the appealed decision.

The need to hold a hearing when requested by all the parties is abolished, with the Court now having the power to decide on the pertinence of holding such a hearing for the better delivery of justice.

Another novelty is the incorporation into the Civil Procedure Act of the formal requirements that had been demanded in the Agreements on criteria for the admission of appeals in cassation and extraordinary appeals for procedural infringement, of January 2017, criteria such as, the identification of the channel of access and the rule infringed, the articulation of the appeal in grounds or the summary of the infringement, among others.

Likewise, among other questions of format introduced by RDL 5/2023, the First Chamber (i.e., Civil Docket) of the Supreme Court is empowered to determine the maximum length of the cassation appeal and the opposition brief by means of an agreement that must be published in the Official State Gazette (“BOE”).

It also establishes the possibility that appeals in cassation may be resolved by means of an order in those cases in which the Chamber considers that the consolidated doctrine reported has indeed been infringed. By means of this order, the case will be returned to the court of origin so that, in accordance with the jurisprudential doctrine, it may issue a new decision.

Finally, and in accordance with the transitional regime, it should be clarified that this new regulation will only apply to appeals lodged against decisions handed down after its entry into force.

The Future of Air Cargo

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Until now, the concept of air cargo has been understood as the transfer of goods by air using the different types of aircraft available on the market to transport goods from one point of origin to another destination.

But this vision must now expand and evolve as the imminent entry of UAS (Unmanned Aircraft System), or what we colloquially call drones, into the commercial system becomes a reality.

Leaving aside the use of these systems for weapons and defence purposes, which in itself is a highly specialised world and there is much to analyse, we are interested in the commercial purposes sought by the development of drones and the impact they will have on the future of air cargo.

It is a fact that it is not easy to adapt national and international regulations to the great technological progress that is being experienced, but since 2017 the European Union has already begun to develop the so-called “U-space”, with impact in Spain from 2019 with projects led by ENAIRE, in order to urge a regulatory framework that will allow the management of UAS traffic in an automated and integrated manner with the management of manned aviation. All this to enable operations with unmanned aircraft in an orderly, fluid, safe and affordable manner.

A statement that is easy to make but difficult to execute, given that the “U-space” must be a safe and highly controlled (and certified) space in which the drones themselves, represented by their pilot; the service provider in that space that operates via the pilot; the provider of information services on the aircraft and its safety; the national control authorities; the security forces; and the general public as an interested party and recipient of any type of information will coexist; all of this, in addition to the traditional aviation itself, which we have known up to now as the “U-space”; the national control authorities; law enforcement agencies; and the general public as an interested party and recipient of any type of information; all of this, in addition to traditional passenger and cargo aviation itself, which we have known until now as the only one but which is considered “manned aviation”.

All this requires a “National Action Plan for the Deployment of U-space” (PANDU) in Spain, which is carried out through the coordinated action of the Directorate General of Civil Aviation (DGAC), the State Aviation Safety Agency (AESA) and ENAIRE, in conjunction with the Ministry of Defence. Thus, by the end of 2023 or early 2024, it is expected to have a controlled space in which to operate drones. This is a very important challenge and, without a doubt, unstoppable.

The evolution in the world of transport is constant and, therefore, this new reality should not surprise us, but there are other factors that help and drive these changes, such as the EU’s goal of minimising emissions from all modes of transport (with very demanding challenges for operators) and optimising the performance of equipment and people.

Thus, the use of UAS is seen as an alternative to transporting certain loads with a positive environmental and resource impact.

A mere example of the new reality that is coming, and in which the world of shipping is affected, is the fact of performing the tasks of shipping consignment and provisioning of a vessel through the use of drones. Let’s say that a ship calls at the port of Vigo, which until now has required the assistance of one or two operations staff from the shipping agent contracted to attend to it, in addition to the rest of the suppliers. If the needs for the delivery of documentation or supplies could be met through the use of drones, it would be feasible to save personnel movements (with their components of contamination and use of resources and equipment), and direct contact would not even be necessary in some cases where there might be necessary isolation situations, such as those experienced during COVID.

This is just one example of a reality that will undoubtedly change the way we understand air cargo transport and, in the not-too-distant future, passenger transport. A small change that only heralds the great change that is coming and to which we will have to adapt.

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Pablo Sánchez joins the Aiyon Cádiz office

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After the latest incorporation of the lawyer Rocío López to Aiyon Algeciras, who attends the local office together with the partner in charge of the same José Antonio Domínguez, our office now incorporates a new support member in the office of Aiyon Cádiz.

The specialized publication “El Canal Marítimo y Logístico” outlines that, having completed a prior training phase in collaboration with the rest of the firm’s team, and in full collaboration with the partner in charge of Cádiz, Enrique Ortiz, Pablo Sánchez is now a permanent part of Aiyon Abogados working as a lawyer from the Aiyon Cádiz office.

Cádiz and its port, with a strategic geographical location, reflects the relevance that the maritime and logistics sector in general have in the province. It is a fact that the Port of the Bay of Cádiz, in conjunction with the port of Algeciras, has positioned itself as the southern gate of Europe and the entrance to three continents.

Connected by land through road and rail access, and by air through the local airports of Jerez and Seville, the port infrastructures of the bay of Cádiz offer the best services and have include relevant companies linked to the logistics sector and maritime transport. In fact, Cádiz, together with Puerto Real and Puerto de Santa María, is home to four commercial docks, two fishing ports, as well as shipbuilding, off-shore and aeronautical repair and construction centers, and various nautical-sports complexes with great activity.

The offer is completed with a Customs-Free Zone, a Maritime Station for passengers and constant entry of cruise ships, a Border Inspection Post, a Traffic Control Center and an Integrated Communications Center, among other infrastructures and services.

That is why Cádiz has a large port community of which Aiyon Abogados has been a part for years, with a very active presence in associations such as Cádiz-Port, being part of the board our partner Enrique Ortiz, or Comport-Algeciras Port Community, among other.

The new member of the firm Aiyon Abogados SLP, Pablo Sánchez, is graduated in Law from the University of Cádiz – UCA (2014) and member of the Illustrious Bar Association of Cádiz. In addition, he holds a Master’s Degree in Maritime-Port Business Management and Maritime Law from the University of Deusto (2018) and the Master’s Degree in Access to the Legal Profession from the UCA (2016), being awarded the prize for the best file in the latter.

Pablo Sánchez completed an internship for six months in a law firm in Dublin (Ireland), where he came into contact with European immigration law and its extensive jurisprudence, in a turbulent period such as 2017 due to the uncertainty generated by Brexit. His first professional contact with the world of maritime-port companies was at the beginning of 2018 in Bilbao, where he did an internship in a freight forwarding company well established in that city, specifically in its maritime export department, which would later lead to two fruitful years of experience in it, thus knowing first-hand maritime export/import, with all the vicissitudes that these suppose at an operational level.

At Aiyon, Pablo Sánchez now develops his vocation as a maritime and transport lawyer, specializing in the management of insurance claims, administrative sanctioning procedures against ships, recoveries, labor relations of sea workers (SOLAS Convention) and land transport claims (CMR), among others, since the firm offers a “360º Service” without limiting itself to its areas of specialization (Shipping – Transport- Insurance – Trade), thus providing solutions to its clients in all areas and according to their needs.

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WISTA SPAIN Annual Meeting, Algeciras 2023

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Last Friday 12 May, in the Millán Picazo Auditorium located in the Port of Algeciras, the Annual Conference of WISTA Spain took place under the title “Strait of Gibraltar: Bridge of Cooperation”, which was attended by our colleagues from Bilbao and Algeciras, Zuberoa Elorriaga, José Antonio Domínguez and Rocío López.

During the conference, the speakers, first-class professionals, carried out a reflective analysis from an eminently institutional perspective on the bilateral relations and cooperation between Spain and its neighbouring country, Morocco; two countries that cooperate as well as compete in the transport and logistics market. The advantages of the strategic location of the Strait of Gibraltar and the Port of Algeciras were also highlighted.

The presentation on the relevance of the Operation Crossing the Strait from the perspective of passengers and land transport was also quite useful, and somewhat more practical, in which details were given, among other topics, on the management of this operation in the ports of Algeciras, Ceuta and Morocco, as well as on the problems and traffic volumes, among others.

Finally, it is worth highlighting the interventions in relation to global trade and the transformation of freight traffic in the Strait of Gibraltar.

Without a doubt, WISTA Spain provided a great meeting opportunity, as well as fostering the pooling of knowledge and experience between local and national operators and highlighting the importance of women in the maritime and transport industry.

AIYON Abogados, and specifically its partners Zuberoa Elorriaga, José Antonio Domínguez and Rocío López, would like to thank WISTA Spain, and in particular the WISTA colleagues from Algeciras and Cádiz, for the excellent organisation of the event, which was very well attended.