Audiencia Provincial de Madrid, Sección 28ª, auto de 21/07/2009 143/2009
Decision by national courts in the field of European Union law — ECLI:ES:APM:2009:12147A
Date: 2009-07-21
Subject matter: Judicial cooperation in civil matters
Origin: Spain

82009ES0721(52)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The insurer of a company brought an action against a Chilean company, which had be charged with carrying out maritime shipping for the insured, before the Juzgado de Primera Instancia of Madrid (ES) for compensation of damage caused to the transported goods. The defendant raised a jurisdictional challenge with reference to Article 23 Brussels I Regulation which it based upon the existence of a jurisdiction clause in favour of the High Court of Justice of London (UK) contained in the bill of lading. The court granted the challenge. The claimant lodged an appeal to the Audiencia Provincial of Madrid (ES) and claimed, inter alia, that the Brussels I Regulation was not applicable since the defendant was a Chilean company which did not have its seat in a Member State. In the alternative in the case of the applicability of the Regulation, they argued that the jurisdiction clause was invalid.
The Audiencia Provincial of Madrid (ES) dismisses the appeal. In view of the fact that the defendant does not have its seat in a Member State, the applicability of the Brussels I Regulation must be based upon Article 4 Brussels I Regulation. The jurisdiction clause is valid. The jurisdiction agreement is not to be judged according to national law, but rather according to the Brussels I Regulation. Even if the clause would be considered as unfair under national Spanish law, it is valid since the validity of the jurisdiction clause under the Regulation depends neither on its fairness nor on whether there is a connecting factor to the State of the prorogated court.
Finally, validity is also established by the fact that such clauses in bills of lading in maritime shipping are an international trade usage within the meaning of Article 23 Brussels I Regulation.