Tag Archive for: aiyonabogados

The Role of the Spanish Ports in Today’s Global Landscape

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In a context of geopolitical uncertainty marked by international conflicts and some crises inherited from 2024, Spanish ports have acquired a strategic role. Spain, with its consolidated maritime tradition, has become a key logistics hub within Europe, positioning itself as a global trade reference due to its geographical location and connectivity.

This is reflected in the growing economic impact of Spain’s general interest ports, which have significantly increased their contribution in recent years. According to a study on the economic impact of Spanish ports, they generate 24.3 billion euros and support 250,000 jobs, accounting for 2.2 percent of national GDP and 1.4 percent of total employment. Spain’s strategic position, at the crossroads of Europe, Africa and America, further reinforces its global logistics significance. The Strait of Gibraltar alone handles between 10 and 25 percent of global maritime trade, consolidating Spanish ports as critical infrastructures in international shipping routes.

Among the Spain’s main ports, the following stand out:

  • Santander/Bilbao: Essential for trade with the UK and Northern Europe.
  • A Coruña/Vigo: Key connections with the Americas, while facilitating north-south trade between Europe and Africa.
  • Algeciras: Spain’s largest port and one of Europe’s top transshipment hubs, maintaining critical links with Africa, the Americas and Asia.
  • Valencia: A leading container port, with strong commercial ties to China and Southeast Asia.
  • Barcelona: A crucial gateway to the Mediterranean and North Africa, with historically high cargo volumes.

This being so, recent geopolitical changes have significantly impacted Spanish ports, compelling them to redefine strategies and adjust priorities in response to new global challenges.

  1. US-China tensions. The expansion of China’s Maritime Silk Road has reinforced Beijing’s presence in the Mediterranean, reshaping trade dynamics. In 2025, new sanctions and ongoing technological disputes could disrupt trade flows, potentially affecting Spanish exports to Asia.
  1. The war in Ukraine and NATO expansion. The energy crisis has shifted trade benefits toward Mediterranean ports, often at the expense of Northern European hubs. Spain has capitalized on this shift by positioning itself as a key LNG importer from the Americas and Africa, leveraging agreements such as the EU-Egypt-Israel trilateral memorandum on natural gas exports to Europe.
  1. The Panama Canal crisis. A potential political crisis or rising transit costs through the Panama Canal could pose challenges for Valencia, Barcelona and Algeciras, which rely heavily on the canal for trade with South America’s Pacific coast. Any disruption could affect rout viability and overall trade volumes.
  1. Decarbonisation and the EU Green Deal. The shift towards a more sustainable maritime transport presents challenges. Spanish ports must adapt to stricter CO₂ regulations while ensuring they remain competitive in global trade.

In order to maintain their global position, Spanish ports must focus on key strategic areas.  Investing in modern infrastructure and digitalisation will be essential for adapting to evolving technological and environmental regulations. Strengthening rail and logistics connectivity will enhance landside efficiency and improve cargo distribution. Additionally, expanding the Green Maritime Corridor in 2025 will further consolidate Spain’s role in sustainable global trade.

Spanish ports must continue evolving towards a more sustainable, technologically advanced mode, fully integrated into international logistics networks.

Only by doing so will they successfully face current and future geopolitical and economic challenges, consolidating their position as key players in global trade.

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The CJEU Allows Advance Complaints for Delayed Baggage (Article 31.2 of the Montreal Convention)

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On 5 June 2025, the Court of Justice of the European Union (CJEU) ruled on case C-292/24 (AD vs. Iberia Líneas Aéreas de España, S.A. – Operadora Unipersonal), addressing a key point of the Montreal Convention, namely: can a complaint be lodged for delayed delivery of baggage before it is made available to the passenger?

The context of the dispute is based on a claim filed by AD, an air passenger, against the airline Iberia Líneas Aéreas de España, S.A.- Operadora Unipersonal (hereinafter, ‘Iberia’), in relation to the latter’s liability for the damage caused by the delay in the air transport of AD’s luggage. The passenger reported the incident on the same day, requesting contact from the airline. When he did not receive a response, he made the purchases he deemed necessary to cover his needs. A few days later, his luggage was delivered to him. Iberia, for its part, refused to compensate the expenses related to the replacement purchases made, as well as the travel expenses and the price of the tickets corresponding to a replacement flight, arguing that the complaint did not comply with the 21-day deadline set forth in Article 31.2 of the 1999 Montreal Convention.

The preliminary ruling referred to the CJEU concerned the interpretation of the second sentence of Article 31.2 of the Montreal Convention, approved by Decision 2001/539/EC and in force for the Union since 28 June 2004. Article 31.2 of the aforementioned Convention states: “[…] In the event of delay, the complaint must be made no later than twenty-one days from the date on which the baggage or cargo was made available to you.”

The CJEU ruled that the aforementioned provision does not impose a strict time limit on when the complaint must be lodged, provided that the maximum period of twenty-one days from the date on which the luggage was finally made available to the recipient has not been exceeded. Therefore, the Court made a literal and final interpretation of the article, emphasising that its wording sets a limitation period but does not expressly prohibit early protest.

Consequently, this interpretation avoids unnecessary formalities and promotes greater legal certainty and effectiveness in protecting the rights of passengers affected by unjustified delays in the delivery of their luggage.

Algeciras Hosts the First Celebration of the 10th Anniversary of AIYON Lawyers

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On Thursday, 29 May, the entire AIYON Abogados team celebrated the firm’s 10th anniversary at an event held at the Hotel Alborán in Algeciras, attended by our clients and friends, as well as our regular collaborators, with whom we form a solid team of lawyers and experts.

At this pleasant event, we brought together leading operators and various stakeholders from the logistics and transport sector in Algeciras and the rest of the province of Cádiz, as well as some local authorities, to commemorate a significant milestone in our professional career.

Multiple local media outlets reported this news, which undoubtedly fills us with pride for the effort and dedication that the team has put into achieving this goal, but above all for its five partners, Enrique Ortiz (head of the Cadiz office), Verónica Meana (head of the Madrid office), Mikel Garteiz-goxeaskoa and Zuberoa Elorriaga (heads of the Bilbao office) and José Antonio Domínguez (head of the Algeciras office); partners who work side by side with the rest of the team in handling all kinds of matters related to their specialities.

Founded in 2015 in the city of Bilbao, AIYON Abogados is one of the few specialist law firms currently operating in Spain that provides advice in the areas of maritime law, transport law (both land and air), insurance law and international trade, addressing all of its clients’ legal needs thanks to a highly qualified and multidisciplinary team of lawyers and a network of trusted collaborators in other areas of law (criminal, tax, commercial, and labour), enabling them to offer a 360º legal service. In fact, last March, we were once again highlighted by the prestigious British legal guide Chambers & Partners in the category of ‘Shipping – Maritime Law’ for Spain, and we also contributed to the chapter on Maritime Law in Spain for the guide The International Comparative Legal Guides, 2025 (ICLG).

This is the firm’s first celebration in this momentous year 2025, which will be followed by a second celebration in Bilbao after the summer, serving as the grand finale to commemorate a decade of work and joint effort, with all eyes set on the next 10 years. Congratulations, AIYON Abogados!

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How is the Arrival of Stowaways in Spanish Ports Managed?

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We would like to thank the Catalan newspaper El Nacional.cat  for the collaboration of our colleagues Jose Antonio Dominguez Castro and Zuberoa Elorriaga for their article on stowaways.

Specifically, the Catalan newspaper reports on the arrival of stowaways in the Port of Barcelona on different ships, which poses a challenge for the different actors affected by this eventuality. Although the newspaper points out that the arrival of stowaways in the Port of Barcelona is scarce, it confirms that this does not mean that this phenomenon does not exist, but that it generally does not transcend despite the fact that it is a reality which, in the 21st century, is still present in maritime life and in the different Spanish and European ports. According to data from the Ministry of the Interior to which the publication had access, between 2016 and 2024 a total of 137 stowaways arrived at the Port of Barcelona: 11 (2016); 20 (2017); 15 (2018); 47 (2019); 15 (2020); 13 (2021); 9 (2022); 3 (2023), and 4 (2024). The authorities state that their provenance is unknown and point out that ‘they have embarked through unregulated procedures unknown to the ship’s captain’.

As El Nacional.cat points out, our firm, in collaboration with the shipowners involved, the responsible authorities, shipping agents and P/I clubs, has managed complex situations arising from this reality in Europe, which undoubtedly always pose a challenge for our team. In this sense, our partner José Antonio Domínguez , a lawyer from the Algeciras office with accredited experience in cases of management of stowaways arriving at the Port of Algeciras, explained in detail to the newspaper the multiple steps and actions that must be taken with all the agents affected once stowaways are detained on a ship on its arrival at a Spanish port, without forgetting the human factor that all this entails, as we are talking about people in an irregular and precarious situation who must be treated with respect and humanity.

Enrique Ortiz, Partner of AIYON Cadiz, Participates in the Round Table Organised by the Propeller Club of Algeciras

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On the 29th of April, an interesting meeting took place in Algeciras, organised by the Propeller Club of Algeciras, which brought together many of the most relevant members of the maritime and transport sector in the Bay of Algeciras, including Enrique Ortiz), our partner responsible for the Cadiz office.

The round table was attended by the presidents of the three major associations of companies operating in the Port of Algeciras, such as the Association of Service Companies of the Bay of Algeciras (AESBA), the Association of Freight Forwarders, International Forwarders and Similar of the Bay of Algeciras (ATEIA-OLTRA) and the Port Community of the Bay of Algeciras (Comport), and was moderated by Mr. Manuel Piedra.

During the meeting, José Antonio Fernández, Manuel Cózar and José Manuel Tejedor analysed the current situation, as well as the future of the logistics-port community of the Port of Algeciras. In general, the participants agreed in demanding better tools for the port facilities and the region in the form of better infrastructures, more space for the activity of the companies in the sector, as well as adequate and up-to-date training to improve the service provided.

The dismissal of Mr. Álvaro Rodríguez Dapena as president of Puertos del Estado, considered a strategic ally for Algeciras, also had a place in the round table. The president of Comport regretted that it is a ‘huge loss for the Port’.

Another recurring theme that was also discussed, and which not only affects the Port of Algeciras but all areas of logistics and transport at national level, was the shortage of qualified personnel in sectors such as consignment, customs or port services. The lack of a maritime-port training centre in the region was highlighted, as well as the urgent need to promote dual training, improve technical training and provide companies with more customs representatives.

In relation to the so-called ‘Green Strategy’ followed by the Port of Algeciras, the speakers advocated the need to advance in compliance with European regulations, but pointed out that some of the measures should have a ‘more practical’ sense in order to be able to adapt better to the needs of the operators.

In general, it was a very complete and pleasant meeting in which Enrique Ortiz was able to take note of the different aspects discussed, as well as to reinforce the links that our firm has with the community of the Bay of Algeciras, and its different actors.

Royal Decree 205/2025 of 18 March Establishing the Criteria for the Determination of Vehicle Charges/Exemptions/Reductions for the Use of Certain Infrastructures

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The aforementioned Royal Decree 205/2025, approved on 18 March 2025 and coming into force on 19 March 2025, aims to adapt the current regulations on criteria for determining the tolls to be applied to goods vehicles with a maximum authorised mass of more than 3.5 tonnes on motorways under concession on the State Road Network, in accordance with the provisions of Directive (EU) 2022/362 of the European Parliament and of the Council of 24 February 2022 amending Directives 1999/62/EC, 1999/37/EC and (EU) 2019/520 as regards the charging of vehicles for the use of certain infrastructures.

Therefore, this Royal Decree has as its precedent Directive (EU) 2022/362 of the European Parliament, and its purpose is to transpose the content of Article 1 of the aforementioned European regulation, adapting the criteria for the determination of tolls under concession and tolls for motorways operated in accordance with the provisions of the seventh additional provision of Law 37/2015, of 29 September, on roads. This, repealing the previous Royal Decree 286/2014, of 25 April, establishing the criteria for determining the tolls to be applied to certain goods transport vehicles on motorways under concession on the State Road Network.

Directive (EU) 2022/362 of the European Parliament and of the Council of 24 February 2022 amending Directives 1999/62/EC, 1999/37/EC and (EU) 2019/520/EC as regards the charging of vehicles for the use of certain infrastructures, whose approval introduces amendments to Directive 1999/62/EC, with the objectives of aligning it with the challenges of climate change, noise and congestion, making progress in the application of the ‘polluter pays’ and ‘user pays’ principles, promoting environmentally sustainable but also socially equitable road transport.

One of the main changes proposed in this new RD is that the term ‘heavy goods vehicle’ is deleted and replaced by the term ‘vehicles in general’, meaning motor vehicles, with four or more wheels, or a combination of articulated vehicles, intended for the carriage of passengers or goods by road or used for that purpose.

In addition, it includes six key annexes which: (i) specifies the main principles for cost allocation and toll calculation; (ii) classifies vehicles according to emission limits; (iii) classifies vehicles according to pavement damage; (iv/v) set out, respectively, the requirements for the determination of external cost tolls and the reference values for the corresponding tariffs; (vi) sets out pollutant emission performance criteria for light-duty vehicles.

This is on the basis that no category of vehicles may be required to pay tolls and any other charges for the use of the same road section at the same time. Similarly, any tolls will avoid discriminatory treatment of international traffic and distortions of competition between operators.

In addition, among other aspects, it establishes that, from 25 March 2026, for the determination of these charges, heavy goods vehicles will be charged for the external costs of atmospheric pollution caused by traffic. It also mentions that an additional cost for noise pollution may be added to this charge, depending on the stretch of road on which the heavy goods vehicle is travelling.

In short, Royal Decree 205/2025 introduces a series of modifications and adapts the European regulations, with which it coexists, in order to meet the objectives pursued by the European Parliament and the Council of the European Union, which is to introduce fair mechanisms for allocating the costs of infrastructure use in order to eliminate distortions of competition between transport companies in the Member States, promoting the proper functioning of the internal market and increasing competitiveness.

‘Chambers & Partners’ Endorses Our Work

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The British entity ‘Chambers & Partners’, one of the most prestigious directories worldwide in the classification of departments of law firms and individual lawyers in different jurisdictions and practice areas, has published its ranking for the year 2025 in which AIYON Abogados has been recognised, once again, as one of the leading firms in its sector, reaching the Band 3 ranking. In addition, at an individual level, our partners Mikel Garteiz-goxeascoa and Verónica Meana have also been distinguished in the ‘Chambers & Partners’ rankings, in Band 3 and Band 4, respectively.

This recognition, which has been consolidating in recent years, confirms the solid track record of our firm, as well as the deep specialisation of our lawyers in the areas of Maritime and Transport Law, strengthening our position in the market and making us a benchmark within the industry.

In this year of celebrations, in which we celebrate ten years since our foundation, we would like to thank all our clients and collaborators for the trust in our firm they have shown, which has allowed us to grow and obtain this much-appreciated recognition.

Regulation (EU) 2023/1805 on Renewable and Hypo-Carbon Fuels in Maritime Transport

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Regulation (EU) 2023/1805 of the European Parliament and of the Council of 13 September 2023 on the use of renewable fuels and low-carbon fuels for maritime transport and amending Directive 2009/16/EC  represents a milestone in the transition towards more sustainable shipping in the European Union. In force since 12 October of the same year and applicable as of 1 January 2025, this regulation establishes new rules to promote the use of renewable and low-emission fuels in shipping within the EU. Its purpose is clear: to reduce greenhouse gas emissions and move towards the climate commitments of the ‘European Green Pact’ which aims to create a climate-neutral Europe by transforming the way we produce and consume.

Maritime transport, which plays a key role in the global and European economy as it handles 75% of the EU’s external trade and 31% of internal trade, has a very significant environmental impact, accounting for 3-4% of total CO2 emissions in the region.

Faced with this challenge, Regulation (EU) 2023/1805 outlines a roadmap for the decarbonisation of the sector, driving the transition to cleaner energy sources. This initiative will not only reduce pollution but also ensure the competitiveness and sustainability of maritime transport in Europe.

The Regulation lays down specific rules to reduce the greenhouse gas intensity of fuels used in maritime transport. One of its main features is that it applies to ships with a gross tonnage of more than 5,000 tonnes operating in EU ports, irrespective of their country of origin or destination. In addition, progressive emission reduction targets are set, starting at 2% from 01 January 2025 and gradually increasing to 80% by 2050 (1). To achieve this, it calls for the use of renewable and low-carbon fuels such as advanced biofuels, hydrogen, green ammonia and electricity. It also promotes the use of wind-assisted propulsion as a viable alternative.

That said, one of the key elements of the regulation is the obligation to use electricity in ports. From 2030, container and passenger ships will have to be connected to the electricity grid at the quayside to avoid the use of combustion engines while in port. This measure will significantly reduce air pollution in coastal cities and improve air quality for local residents.

The implementation of Regulation (EU) 2023/1805 will have a positive impact on the reduction of pollutant emissions in maritime transport. This legislation is expected to drive innovation in propulsion technologies and encourage the development of more sustainable fuels, consolidating Europe’s leadership in green solutions for the maritime sector.

However, it also presents challenges, especially in economic terms. Shipping companies will have to invest heavily to adapt their fleets to meet the new standards. In addition, the development of adequate port infrastructures to ensure the supply of alternative fuels and the implementation of efficient electrical systems will be crucial.

Sanctions and enforcement systems: To ensure compliance with the regulation, a penalty system known as FuelEU will be implemented, which will penalise ship operators that fail to meet emission reduction targets. In addition, compensation between vessels within the same company will be allowed to balance compliance levels and facilitate a more flexible transition to clean fuels.

In conclusion, Regulation (EU) 2023/1805 marks a turning point in the regulation of maritime transport in the European Union. With these measures, the EU reaffirms its commitment to the fight against climate change and its leadership in promoting sustainable solutions for global transport, a clear example of commitment to future generations and the planet.

The effective implementation of this regulation will undoubtedly depend on the joint efforts of authorities, companies and operators in the maritime sector, who will have to adapt to this new era of green and responsible shipping and, although the transition to a more sustainable maritime industry involves challenges in terms of costs and technological adaptation, the long-term environmental and economic benefits are unquestionable.

(1) The regulation sets concrete targets compared to 2020 levels: 2% less in 2025, 6% in 2030, 14.5% in 2035, 31% in 2040, 62% in 2045 and 80% in 2050.

Organic Law 5/2024, of 11 November, on the Right to Defence

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The right to defence and to the assistance of a lawyer is a set of powers and guarantees recognised to natural and legal persons to assert, in accordance with a previously established procedure, their rights, freedoms and legitimate interests in any type of dispute. It is expressly recognised in the second paragraph of Article 24 of the Spanish Constitution: ‘…everyone has the right to an ordinary judge predetermined by law, to a defence and the assistance of lawyer, to be informed of the charges against them, to a public trial without undue delay and with all the guarantees, to use the means of evidence relevant to their defence, not to testify against themselves, not to confess guilt and to the presumption of innocence’.

Thus, while case law and judicial practice have been consolidating standards of protection and aspects that have been consolidated as an inherent part of this fundamental right, it was necessary for this basic principle of our rule of law to be enshrined in an organic law. The Organic Law 5/2024, of 11 November, on the Right to Defence, which will come into force on 4 December 2024, is therefore born. Although most of the provisions in this law have already been addressed by other legislation, what is reflected, in reality, is the intention to develop them and to give them legal coating that ensures the effective exercise of the defence.

That said, we must stress that there is an inherent link between the Right of Defence and the Legal Defence. Although individuals can defend themselves in some cases, legal defence, carried out by a professional, is considered the most appropriate and secure means of protecting this right. Therefore, the independence and freedom of expression of lawyers and, in general, the exercise of their functions must be protected with all guarantees so that the quality and effective defence of the client is not compromised.

In the new O.L., the regulation of the right of defence is accompanied by the establishment of certain rules, both regulating the legal profession and the guarantees that allow its professional practice to provide an effective guarantee of the defence of individuals. In this context, the Bar Associations operate as an institutional guarantee of the right to defence, ensuring the independence and freedom of legal professionals in their daily work, as well as maintaining relations with the different administrations. In other words, the right of defence and the profession that best guarantees it are jointly regulated, as more than half of the articles focus on the ethical obligations of lawyers.

In this article we would like to highlight the most relevant issues of the Organic Law 5/2024, of 11 November, on the Right of Defence, which are summarised as follows:

-Transparency and accessibility of information provided to customers. It places greater responsibility on lawyers to communicate with their clients, who are entitled to receive clear and accessible information about their rights, legal procedures, the order form and the status of their files. It stresses the importance of legal aid being inclusive and tailored to the individual needs of each person, including an ethical and professional commitment to establish the necessary means for the effective defence of people in vulnerable situations.

Similarly, the need for transparency on the use of Artificial Intelligence (AI) is included: the right to know the artificial intelligence criteria used by digital platforms for the choice of legal professional, procedure management, etc. and, in general, any legal service that is carried out electronically. Lawyers must be prepared to work in electronic environments to ensure accessibility and advocacy for their clients and will have grounds to challenge automated decisions that are not transparent.

-It ensures that lawyers can act freely, without fear of communications being used against them or to the detriment of the client, which is fundamental to the integrity of the right of defence. Professional secrecy and the protection of confidentiality are matters already regulated by professional codes of ethics, but this organic law introduces a very relevant issue: ‘Communications made exclusively between the advocates of the parties in the course of litigation or proceedings, whatever the time at which they take place or their purpose, even out of court, are confidential and may not be relied on in court nor have evidentiary value.’

This is one of the great advances of the law, as some lawyers dare to provide professional communications (despite being deontologically sanctioned), given the usual practice of courts and tribunals to offer evidentiary value to such communications.

Thus, in general, deontological obligations are reinforced, since many deontological duties, which lack legal rank, contemplated in rules such as the Code of Ethics of the Spanish Legal Profession or the General Statute of the Spanish Legal Profession, are elevated to the rank of law with the implementation of this regulation.

-Particularly important is the legal framework for establishing guidelines for professional fees within the Bar Associations. This issue created financial uncertainty for citizens as, in the absence of guidelines, it was very difficult to anticipate the costs of legal proceedings and to make informed decisions when hiring a lawyer.

With regard to this point, the use of the ‘order form’, a document in which the essential conditions of the order are determined, such as the object of the contracted services, their duration, the fees and method of payment, the treatment of allowances and substitutes, the intervention of other professionals, etc., is strengthened.

-The competence of the Bar Associations is strengthened; as an example, Article 23 of the present law states: ‘that the Consejo General de la Abogacía Española (CGAE) will be responsible for issuing interpretative circulars of the Code of Ethics, ensuring a uniform application of the ethical rules. These circulars provide clarity on the expectations of professional and ethical conduct, helping lawyers to align themselves with the official interpretations of the Code of Ethics.’This guarantee favours the constant improvement and professionalisation of the sector, ensuring that lawyers are prepared for the challenges of legal practice.

In addition to this, the second Additional Provision strengthens the position of the Bar Associations in the management of free legal aid services, allowing them to organise and supervise the legal aid office and to reinforce the Legal Advice Services (the Bar Associations will inform them about free legal aid ensuring that this guidance is especially accessible to the most vulnerable groups).

In conclusion, the Defence Law lays the foundations for a significant reform in the field of legal aid and the practice of law in Spain. Its effective implementation will depend, to a large extent, on the provision of adequate resources and on the collaboration between the Administration of Justice, the collegiate institutions and the professionals themselves. This legal framework aims to reinforce confidence in the justice system and to dignify the practice of law, consolidating its role in the defence of citizens’ rights.

On the Additional Validity Requirements for the Effectiveness of Jurisdiction Clauses in Bills of Lading

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It is common practice in the international maritime transport of goods for shipping lines to offer their own general conditions of contract, and for the rest of the actors in the sector to adhere to them. Therefore, the consignees, receivers of the goods carried under the bill of lading (B/L), do not in practice have the capacity to negotiate the terms of these documents; but by acquiring the bill of lading, they succeed to the shipper’s rights and obligations. The clauses conferring jurisdiction to resolve possible disputes that may arise between the parties are also included in these general conditions.

Law 14/2014, of 24 July, on Maritime Navigation (LMN), has tried to protect these consignees by drafting articles 251 and 468 of the LMN. Article 251 of the LMN provides that the acquirer of the bill of lading is also the acquirer of all the rights and actions of the transferor over the goods, except for those referring to jurisdiction and arbitration agreements, which should be adjusted to the provisions of Article 468 LMN, which establishes that clauses of submission to foreign jurisdiction or arbitration abroad that have not been negotiated individually or separately will be null and void.

This is the issue raised in our post ‘Scope of the international jurisdiction clause in Bills of Lading’ of 14 May 2024. Following the judgment of 25 April 2024 of the Court of Justice of the European Union (CJEU) in cases C-345/22 to C-347/22, resolving the questions referred to in a preliminary ruling by the Provincial Court of Pontevedra, it is now the turn of the mentioned court to deliver its judgment.

Since the adoption of the LMN, the Provincial Courts have interpreted differently the reference made by the CJEU in the case of ‘Coreck Maritime GmbH v Handelsveem BV and others (C-387/98)’ to the ‘applicable national law’ of the State hearing the dispute in relation to the enforceability of these clauses against third parties:

  • The law governing the substantive validity of the jurisdiction agreement, which according to Article 25(1) of the Brussels I bis Regulation is the law of the State whose courts have been designated by the parties, including the rules of private international law (cf. Article 20 of the Regulation).
  • The national law which, according to the rules of private international law of the forum, governs the legal relationship whose succession is in dispute.
  • The lex fori (the domestic law of the State before whose courts the action is brought).

In this respect, and as the CJEU did in its response to the questions raised, the Provincial Court of Pontevedra is clear in stating that ‘when Community case law refers to domestic law to judge on the transfer of rights in the security, that domestic rule is not necessarily Art. 251 LMN, but the reference must be understood as being made to the rules of private international law’. Therefore, according to the Provincial Court of Pontevedra in its ruling, we must look for the applicable conflict rule. In accordance with the facts in dispute, whether applying the Rome I Regulation or art.10.3 Spanish Civil Code (even in application of arts. 100, 102 and 165 of Law 19/1985 of 16 July 1985 on Exchange and Cheque), conflict rules lead to the same point, and not to Spanish law; in the contested case it would be Peruvian substantive law that would be applicable to the enforceability of these clauses. However, in these cases, the parties did not prove the content and validity of the foreign law, so the court understood that it should refer to domestic law according to the general rules contained in art.33.3 of Law 29/2015, of 30 July on International Legal Cooperation in Civil Matters. It is thanks to the lack of proof of foreign law that the Provincial Court of Pontevedra applies the Maritime Navigation Act. This was essential for the Court of Justice of the European Union to be able to rule on the second question, i.e. whether inserting additional validity requirements for the effectiveness of jurisdiction clauses in bills of lading is contrary to the Brussels I bis Regulation.

And in this sense, the Provincial Court of Pontevedra upholds the thesis of the CJEU, when it rules: the principle of the primacy of EU law makes it necessary to invalidate the last paragraph of the provision, which provides for an exception to full subrogation in respect of jurisdiction and arbitration clauses. Excluding that rule, Community legislation and case law must be applied, which admits the provision of the plaintiff’s consent in the form in which it is set out in the title (cf. art. 35.1 [sic] of the Brussels I bis Regulation), thereby overriding the requirement that the recipient addressee, holder of the knowledge, express its consent individually and separately’. In other words, EU Member States cannot add in their substantive law additional requirements to those foreseen by Art. 25(1) of the Brussels I bis Regulation.

Thus, the Provincial Court of Pontevedra affirms the effectiveness against third parties of the clauses conferring jurisdiction contained in the B/L and declares the lack of jurisdiction of the Spanish courts to hear the dispute, in favour of the court of the United Kingdom specified in the clause. Therefore, the clause will be enforceable against the third party holder of the B/L provided that it has been recognised as valid in the relationship between the shipper and the carrier that concluded the contract and that the third party has been subrogated to all the rights and obligations of one of these original parties, in accordance with the applicable national law, determined by virtue of the rules of private international law of the Member State hearing the dispute. Where the clause grants jurisdiction to the courts of an EU state, the manner in which consent is given is not governed by national law as long as it departs from the formal and substantive validity requirements of Art. 25 BIT-bis).  The LMN, as currently drafted, will only become operational when the Brussels I bis Regulation or an international treaty standard does not apply.

The resolution of the question undoubtedly limits the application of Article 251 of the LMN.

In the case at hand, which occurred in pre-Brexit times, the UK was still a member state of the EU, so the form of consent was that of Art.25 RBI-bis, as it is to any jurisdiction clause in favour of European courts. However, after Brexit, the jurisdiction clause in favour of UK courts, which is very common, would no longer be subject to the aforementioned European regulation and could therefore be subject to the regime of the Maritime Navigation Act. Without its individual and separate negotiation it would not be recognised, like any other clause in favour of non-European courts or arbitration clauses.