Keywords: private international law, contract of carriage, bill of lading, jurisdiction clause.

Bill of lading performs a number of essential functions, among which it traditionally stands out that it certifies the conclusion of a contract of shipment; serves as a receipt for the cargo received by the carrier; and acts as a document of title (security).¹ Its compliance with the rapidly increasing complexity of civil law requirements contributes to its widespread use at the international level. In the framework of international maritime transport, the issue of applicable law and the related jurisdiction clause comes to the fore.

The link between the provisions on applicable law and jurisdiction is conditional—they are bound only by the fact that the parties can reach an agreement on their choice. At the same time, the law applicable to the contract may differ from the law of the jurisdiction (lex fori). Often, the jurisdiction clause refers to the court of the carrier’s principal place of business, but it is not limited to this option. Equally popular is the choice of a court of well-known jurisdiction, such as the High Court of Justice in London and the United States District Court for the Southern District of New York. Another option is to specify the jurisdiction in the charter governing the carriage. These options are not accidental; they are the result of many years of practice, and it is precisely this list of conflict of laws references that we can see in the GENCON 94² charter form, which is often referred to by the parties when including a clause contained in the charter in the bill of lading. At the same time, international practice is based on the assumption that if a jurisdiction clause is included in the bill of lading, it is necessary to refer directly to the charter clause or reproduce it verbatim in the bill of lading.³

The courts of England are quite positive towards jurisdictional clauses referring to the High Court of London and, in virtually every case, recognise the validity of such clauses.⁴ As for countries with civil law systems, their willingness to refer cases to common law jurisdictions is gradually fading. To this day, national legislation in different countries has different attitudes towards the validity of jurisdiction clauses, which has a negative impact both on private market participants, for whom the predictability of dispute resolution is sharply approaching zero, and on the courts themselves, which sometimes compete to hear a case.

This article provides an analysis of the current legislation of Russia, as a major transit and export country, and Spain, an EU member state that also plays an important role in the maritime transport market.

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Regarding the Russian Federation, the main legislative act regulating maritime law, the Merchant Shipping Code of the Russian Federation (hereinafter – the RF MSC), does not provide for the possibility of specifying jurisdiction in the bill of lading. In general, the legislator partially bases the provisions of the RF MSC on the Hague-Visby Rules, which also do not provide for such a reservation. The other part corresponds to the less well-known Hamburg Rules, in which international jurisdiction is clearly delineated (Article 21), but these rules are not reflected in the RF MSC.⁵

However, it should be noted that, in case there is a foreign element in legal relations, in accordance with the principle of autonomy of will, parties are entitled to choose both the applicable law and the court for consideration of the dispute (Article 1210 of the Civil Code of the Russian Federation, Article 37 of the Commercial Procedure Code of the Russian Federation (hereinafter, RF CPC), Article 249 RF CPC). Thus, the parties are free to select any court or arbitration institution worldwide to resolve the dispute. At the same time, this provision is a contractual obligation to which the rules on exclusive jurisdiction do not apply (Article 38 of the RF CPC). The existence of an agreement on the choice of an arbitration institution prevents the consideration of a foreign economic dispute in a state court if at least one of the parties involved in the case, before stating its position on the merits of the dispute in the state court of first instance, requests that the dispute be referred to international arbitration.

The existence of an arbitration agreement prevents a foreign economic dispute arising from such an agreement from being heard in a state court if at least one of the parties to the case requests that the dispute be referred to international arbitration before presenting its position on the merits of the dispute in the state court of first instance.

To illustrate the judicial approach to this issue, we suggest reviewing Resolution No. A56-44645/2005 of the Federal Commercial Court of the North-West District, as well as Resolution No. 16727/09 of the Presidium of the Supreme Commercial Court of the Russian Federation dated March 30, 2010, in case No. A40-12111/09-63-138. No. 16727/09 in case No. A40-12111/09-63-138. Based on an analysis of these judgements, it can be concluded that at the time the judgements were made, Russian courts viewed both the jurisdictional clause in the bill of lading and the submission of the dispute to a foreign court in a favourable and positive light.

Indeed, this positive stance by the courts prevailed in practice until 2020, when amendments were made to Articles 248.1 and 248.2 of the RF CPC, also widely known as the “Lugovoy Law.”⁶ In connection with the incessant flow of restrictive measures, the legislator introduced provisions according to which the Russian party subject to sanctions acquires the right to transfer a dispute, in respect of which there is an arbitration clause, from the selected foreign institution to a Russian one. In other words, the exclusive jurisdiction of Russian commercial courts has been introduced at the legislative level, and from this point on, a peculiar and somewhat fragmented judicial practice has begun to take shape.

Importantly, the practice associated with the entry into force of the “Lugovoy Law” is still developing and does not have clear contours, so there are no cases in which the jurisdictional clause is contained specifically in the bill of lading. However, for a general understanding of the position of the judicial system, several court cases where the arbitration clause was contained in the agreement between the parties will be examined in the continuation of this article.

Thus, in the stream of early judgements, a protectionist approach on the part of the courts can be observed. In the vast majority of rulings, courts recognised their exclusive jurisdiction to hear disputes. One of the key cases is case A60-36897/2021 (the Uralvagonzavod case). Upon its consideration in the first instance—the Commercial Court of the Sverdlovsk District⁷–the imposition of a restriction on continuing proceedings in the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) was denied because the claimant failed to prove the existence of circumstances limiting access to justice. The case reached the Supreme Court of the Russian Federation, which satisfied the claimant’s claims.⁸ The Supreme Court’s position is as follows: the fact that sanctions have been imposed is sufficient to recognise a restriction on access to justice.

This judgement led to the further elaboration of the concept, followed by similar judgement.⁹

As mentioned earlier, there are quite a few cases in which courts have considered disputes concerning the application of Articles 248.1 and 248.2 of the CPC. However, it would be wrong to say that all of them are identical and follow the same scenario. For example, in case A56-68481/2023 between VMT LLC and OOCL (EUROPE) Limited, the Commercial Court of St. Petersburg and Leningrad District indicated that the claimant had not provided evidence of the existence of restrictive measures against it. In this regard, the statement of claim was returned.¹⁰ In addition, a similar judgement was made in case No. A56-68477/2023 between VMT LLC and Maersk Eastern Europe ApS.¹¹

Furthermore, within the scope of this paper, it would be interesting to examine case A56-111059/2024, in which the claimant, Stimul LLC, is a company that entered into an assignment agreement with the foreign company xChange Solutions GmbH. In its claim, Stimul LLC stated that the arbitration agreement was invalid and unenforceable because arbitration in London was not a permanent arbitration institution and the parties themselves were Russian companies unable to refer the dispute to foreign arbitration. The court found these arguments to be unfounded and left the claims unchanged.¹² The court indicated that “the claimant, who, according to its own statement, acquired rights under the Agreement from a person from an unfriendly state, is not subject to sanctions by foreign states and, accordingly, has no grounds to seek the remedies provided for in Article 248.1 RF CPC.”

Based on the aforementioned, it can be concluded that the practice in such cases remains inconsistent and is still in the process of development. It is impossible to predict whether the court will recognise its exclusive jurisdiction, what the court judgement will be, or whether circumstances preventing the dispute from being heard in a foreign institution (e.g., inability to pay the fees for arbitration) will actually be recognised as sufficient. It should be noted that Russia does not reject jurisdictional clauses entirely, but makes them conditional on the absence of sanctions pressure.

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Shifting to Spanish regulations, the following should be noted: in Spain, in addition to national regulations–the Maritime Shipping Act of 2014 (hereinafter referred to as the Act)–this issue is also regulated by two important sources: Brussels I bis of 2012 and the Lugano Convention of 2007 It is important to note that the list of sources regulating this issue is not limited to those presented above, but this paper will focus on them.

The starting point in Spanish legislation is the Maritime Shipping Act, as it significantly contradicts European regulations: the legislator has literally limited the principle of the parties’ autonomy and imposed strict limits on the determination of jurisdiction. Thus, art. 468 of the Act states that provisions on the choice of jurisdiction shall be deemed invalid if they have not been agreed upon individually and separately by each party, while art. 251 of the Act further narrows this provision: in the event of a bill of lading being transferred, the jurisdictional clause shall not apply to the new titleholder.¹³

This immediately raises a logical question: “What was the legislator’s goal in establishing such strict regulations, which are contrary to those in force throughout Europe?” The answer to this question is given in detail in the preamble to the Act. In short, the legislator wanted to protect the weaker party in the contractual relationship, since a contract for the carriage of goods using a bill of lading is an adhesion contract, and transport companies impose their terms on the other party.

Such a solution raises concerns regarding its practicality even in isolation from European legislation. Individual agreement of terms with each party is a requirement that is hardly feasible in practice. It has only negative consequences. Firstly, such a condition hinders legal certainty. Secondly, it has economic consequences: the carrier is deprived of the opportunity to choose a specific jurisdiction for the consideration of disputes involving the company, which necessitates an increase in the number of lawyers (which raises the cost of transportation services and deprives this type of transportation of one of its greatest advantages–its relative cheapness). Thirdly, discussing the terms of the contract with each counterparty will significantly affect the speed of concluding contracts.

To better understand the origins of such a strict limit, let us turn to the facts. Spain is a country of shippers and consignees, not shipowners. Maritime transport is dominated by foreign shipping companies, which resolve disputes outside Spain through choice of jurisdiction clauses. The legal norm of the Act is aimed at neutralising recourse to foreign courts so that Spanish insurance companies can conduct legal proceedings in Spain.

Having discovered this true and unspoken intention of the clause, one may wonder what purpose is served by reserving the international jurisdiction of Spanish courts if, after a judgment has been rendered, it must be recognised and enforced in another country in order to take effect, given that the carrier is usually a foreign company. The carrier’s country, in turn, may refuse to enforce the Spanish judgment because the court that issued it did so against the jurisdictional clause in the bill of lading.¹⁴

The introduction of these provisions of the Act already seems unreasonable, but let us consider how they relate to EU-level regulation. Comparing these provisions with the choice of court clauses contained in Brussels I bis and the Lugano Convention, we conclude that these provisions contradict each other. International sources, in particular Brussels I bis (Article 25) and the Lugano Convention (Article 23), indicate that they recognise the validity of choice of court agreements if they meet the formal requirements, even in international maritime transport contracts. At the same time, the Act declares agreements on the referral of disputes to foreign courts or arbitration abroad to be invalid if they have not been individually and separately agreed upon in contracts for the use of ships or auxiliary navigation equipment, which gives rise to a conflict.

Here is a brief example that clearly illustrates what happens when the Lugano Convention is applied. For example, an agreement is concluded between residents of Spain and Iceland, both parties to the Convention. In accordance with the principle of supremacy and uniform interpretation of international conventions, an international source–the Lugano Convention–is applied. In this case, the rule on the choice of court will apply even if it does not comply with the requirements of the Act.

Furthermore, given that court practice does not provide a clear answer to the question of dispute resolution in the presence of a foreign jurisdiction clause, it will be useful to analyse several practical cases. Thus, in 2020, the Provincial Court of Pontevedra¹⁵ considered a case in which the parties agreed that in the event of a dispute, the applicable law would be the law of the United Kingdom (the dispute arose before Brexit): “this bill of lading shall be governed by and interpreted in accordance with English law, and any dispute arising therefrom shall be settled by the High Court of London.” The court of first instance ruled that the case would be governed by Brussels I bis, i.e., the foreign jurisdiction agreed upon by the parties. An appeal was subsequently lodged on the grounds that “the insurer is not a party to the contract and, therefore, the Act should apply rather than the EU Regulation, which changes the enforcement regime for clauses transferring the case to third parties who are not parties to the contract.” However, the court ignored this fact and noted that “if EU rules apply, as in this case, Article 251 of the Act yields to the provisions of the Brussels I bis Regulation, as does art. 468 of the Act itself. Consequently, the requirement for individual and separate negotiations on a jurisdiction clause is applicable only in cases where that clause confers jurisdiction on a non-EU Member State.”

As a counterexample, consider the judgement AAP B 3145/2020 of the Provincial Court of Barcelona¹⁶ dated May 20, 2020, in which the court, in a similar case (in which the parties had also chosen English law), held that Spanish law should apply in accordance with the provisions of the Act. The court ruled that, in the event of a dispute between the consignee or subsequent holders of the bill of lading, “the new Act changes the procedure for enforcing clauses on transfer to third parties who are not parties to the contract.¹⁷” At the same time, the Court makes a rather curious judgement, justifying its conclusion in favour of applying the rules of the Act by referring to the judgement of the Court of Justice of the European Union of November 9, 2000 in the Coreck Maritime¹⁸ case, which states that “a subordination clause can only be enforced against a third-party holder if the latter has become the successor to the shipper’s rights and obligations ‘in accordance with the applicable law.’” This reference is noteworthy because at the time of the Coreck Maritime judgement, the Act did not yet exist, and its introduction should have reduced legal uncertainty somewhat. Therefore, it seems that the judgement should be different, given that the provisions of article 468 of the Act apply only if the court chosen by the parties is located in a country that is not a party to the Brussels I bis or Lugano Convention.

It is evident that there is no consensus regarding jurisdictional clauses in Spanish courts. Since the legislator decided to conceal the true reason for introducing provisions on the invalidity of jurisdictional clauses and did not reinforce its position by issuing additional materials and information letters, judges continue to interpret the norm variously, which negatively affects both the unification of judicial practice and the decision of large transport companies to choose Spanish law as applicable.

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After reviewing the regulatory framework of Russia and Spain, we can draw a number of important conclusions. First and foremost, it is important to note that, despite the fact that the regulation of maritime transport in both countries is based primarily on international acts and conventions, the approaches of the countries differ on a number of significant issues. Excessive protection of national interests at the legislative level is evident in both Spain and Russia, although it is of a different nature and is dictated by different circumstances. At the same time, it is worth noting the continuing heterogeneity of Russian judicial practice, as evidenced by drastically opposing court judgements. Unfortunately, the result is a situation where contractual jurisdiction cannot be guaranteed, and legal uncertainty reaches its peak.

Thus, lawyers practicing in maritime law must be aware that jurisdictional clauses may be ignored both in Russia and abroad, and they need to be prepared for this. The current situation is greatly complicated by the existence of sanctions, and the response of the Russian legislator, leading to concurrent and conflicting proceedings and the emergence of a new type of conflict: state restrictions against freedom of contract. Unfortunately, the level of legal integration around the world is still far from ideal, and there are many barriers to the normal functioning of the market.

Undoubtedly, under the current circumstances, the development of a unified approach is of particular value. Elaborating on the idea of intensifying international economic cooperation, A.S. Komarov pointed out back in 1990 that “longer-term projects include the development of transnational rules on civil procedure that could be applied to the resolution of international disputes and that would reflect the principles of civil procedure recognised in the civilised world. Work is also planned for the future on a draft of uniform rules applicable to contracts of carriage, the existence of which would greatly facilitate the task of states reforming their legislation in this area.”¹⁹ In 2025, we can only hope that these rules will one day be introduced. ■

Notes