A few months ago we wrote a comment on two recent decisions of the Courts in Valencia regarding foreign jurisdiction clauses in bills of lading. A further decision has just seen light. On 8 November 2016 the Audiencia Provincial of Valencia (section 9, leading judgment by Ms Purificación Martorell Zulueta) confirmed a first instance decision successfully challenging the jurisdiction of the Spanish Courts in a claim brought by a bill of lading holder which incorporated an English Law and jurisdiction clause.

The emphasis in the two prior to decisions was the preferential application of the recast Brussels Regulations (UE 215/2012) and the need to ascertain whether or not there was agreement in relation to the jurisdiction clause within the meaning of the recast Brussels Regulation. In the first of the decisions, the Court was not satisfied that there was an agreement given that the party challenging the jurisdiction was unaware of the usages of trade in relation to foreign jurisdiction clauses in bills of lading. The second decision went the other way, the Court was satisfied of the ample experience of both parties in the industry and the prior course of dealing between them and therefore upheld the English law and jurisdiction clause.

Following the same principles and the same line of thought, the same Court and Judge has upheld again an English law and jurisdiction clause clarifying that (1) the recast Brussels Regulation (1215/2012) prevails over national statute (in particular, article 468 of the Spanish Navigation Act) when the jurisdiction clause refers to the applicable law and courts of a Member State; and (2) that there has to be a valid agreement within the meaning of the Regulation for the clause to be valid and binding.  Contra sensu, if the clause in question refers to a non-Member State, article 468 of the Spanish Navigation Act, which makes law and jurisdiction clauses null and void if they have not been individually negotiated, will apply.

The Court also reminded everyone that Brexit had not taken place, but “without prejudice to the consequences it may have in the future in relation to English law and jurisdiction clauses”. The question in the mind of the Court was the potential impact that Brexit might have in relation to the application of the recast Brussels Regulation  – as opposed to article 468 of the Spanish Navigation Act – in relation to English law and jurisdiction clauses. Presumably, if the UK ceases to be a part of the EU, it will cease to be a Member-State within the meaning of the recast Brussels Regulation.