Mr. Gonzalo v. The Bymovil Spain S.L.U.

At a glance

Parties

Mr. Gonzalo (appellant, claimant below) v. The Bymovil Spain S.L.U. (respondent)

Case no.

AAP VI 3/2019; Auto No. 10/2019; Appeal No. 1584/2018 (ordinary proceeding 688/2018)

Court

Audiencia Provincial de Álava, Section 1 (Vitoria-Gasteiz)

Treaty

Contract clause 20 (arbitration at the Chamber of Commerce of Torrelavega); New York Convention Article II(3) cited

Tribunal

María Mercedes Guerrero Romeo (President), Emilio Ramón Villalaín Ruiz (rapporteur), Iñigo Elizburu Aguirre

Outcome

Appeal allowed. The first-instance order declining jurisdiction in favour of arbitration was revoked, and the court of first instance was held competent to hear the whole dispute.

Amount

No amounts stated. No costs order in either instance.

The dispute

Mr. Gonzalo sued The Bymovil Spain S.L.U. before the Court of First Instance No. 1 of Vitoria-Gasteiz. He sought compensation and a declaration that two clauses of their contract were null: clause 14, which waived all compensation, and clause 20, the arbitration clause itself. Clause 20 submitted any discrepancy on the "interpretation and/or execution" of the contract to arbitration at law before the Chamber of Commerce of Torrelavega. Bymovil filed a declinatoria (objection to jurisdiction). On 31 July 2018 the first-instance judge declined jurisdiction in favour of the Chamber and ordered the claimant to pay costs. She reasoned that the claimant was not a consumer, that the clause in the adhesion contract broke no mandatory rule, and that a claim for compensation could be arbitrated. Mr. Gonzalo appealed.

Key holdings

1. Following Supreme Court judgment STS 409/2017, the Court held that a judge deciding a declinatoria based on an arbitration agreement must fully review whether the agreement is valid, effective and applicable. A superficial check is not enough. The Court noted that New York Convention Article II(3) points the same way. Fundamento Primero
2. The arbitration clause was drafted in advance by one party in an adhesion contract. The judge therefore had to decide whether the claimant had clearly and unequivocally agreed to arbitrate the claims in his suit. This applies even though he was not a consumer. Fundamento Segundo
3. The claims that clause 14 and clause 20 were null went beyond the "interpretation and execution of the contract". A declaration of nullity is a very different task. It was not shown that the claimant had clearly accepted arbitration of these claims, so the court of first instance is competent to hear the whole dispute in preference to the arbitral body. Fundamento Segundo
4. Costs: there is no costs order on the appeal, which was allowed (Article 398 of the Civil Procedure Law). There is also none for the first instance, because a declinatoria is an incidental question for which the rules impose no costs. Fundamento Tercero; Parte Dispositiva

Procedural history

1. 31 July 2018Court of First Instance No. 1 of Vitoria-Gasteiz (Auto No. 245/18) declines jurisdiction in favour of the Chamber of Commerce of Torrelavega and orders the claimant to pay costs.
2. 10 October 2018Mr. Gonzalo's appeal is admitted.
3. 27 November 2018Appeal file opened at the Audiencia Provincial of Álava.
4. 24 January 2019Deliberation and vote.
5. 29 January 2019Auto No. 10/2019: appeal allowed and the first-instance order revoked. No ordinary appeal lies against this decision.

Tribunal, counsel and experts

Decided by

• María Mercedes Guerrero Romeo President, Audiencia Provincial de Álava
• Emilio Ramón Villalaín Ruiz Judge, Audiencia Provincial de Álava (rapporteur)
• Iñigo Elizburu Aguirre Judge, Audiencia Provincial de Álava

For the claimant

Magdalena Pericet Menendez-Valdes · Iratxe Damborenea Agorria

For the respondent

Cristobal Palacio Ruiz · Alicia Arrizabalaga Iturmendi

Run a conflict check on these names →

Keywords

• New York Convention Article II(3)
• declinatoria
• kompetenz-kompetenz
• adhesion contract
• validity of arbitration agreement
• scope of arbitration clause
• clear and unequivocal consent
• contra proferentem
• STS 409/2017
• Spanish Arbitration Act 60/2003
• Chamber of Commerce of Torrelavega
• nullity of contractual clauses
• Spain
• Bymovil

Summary generated with AI from the published documents — refer to the award for the authoritative text.