These days mark the 20th anniversary of the greatest ecological tragedy that the Spanish coastline has ever suffered.

Tragedy which, in addition, caused economic damage of at least 1,500 million euros for the State, Administrations and individuals. From a legal perspective, the Prestige case has given rise to a complicated and dual procedure, in Spain and in the United Kingdom, of which the latest episode so far is the judgment of the CJEU of 20 June 2022. Firstly, criminal proceedings were initiated by the State and other injured parties, from which the corresponding civil liability (Art. 117 CP) would be derived.

This procedure has lasted 16 years.

The investigation corresponded to the Court of First Instance of Corcubión, which took nine years, giving rise to a first sentence of the Court of Pontevedra which, after various incidents, was appealed before the Court of A Coruña, giving rise to a much discussed sentence in 2013, which exempted from criminal liability all the defendants except the Captain, and therefore pointed out civil liability to him and jointly and severally to the shipowner and his insurance company (London P&I Club, or the Club). Appealed before the Second Chamber of the Supreme Court, in 2016 it was overturned in several aspects, finally determining the sole liability of the Captain and modifying the civil liability, now set at 1,000 million euros. The Court of Appeal of A Coruña issued an enforcement order in 2017 which finally led to a new judgment of the 2nd Chamber of the Supreme Court in 2018, which closed the proceedings. From then on, the effective enforcement of the judgment in the United Kingdom, by means of exequatur, remained to be done. This opens a second chapter in this long road. It should be recalled that R. (EC) 44/2001 Brussels I is applicable to the case, as the application of R (EU) 1215/2012, (Brussels I Bis) began in 2015, after the filing of the lawsuit in 2003. The insurer, London P & I Club, had joined the initial criminal proceedings by depositing the sum of €22.7 million, exactly the amount corresponding to the 1992 CLC Convention on Civil Liability for Oil Pollution Damage.

During the respective appeals to which it was no longer a party, it commenced arbitration proceedings in London under the terms of the underwriting contract with the shipowner. Contract and jurisdiction subject to English law. The arbitration considered the clauses of the insurance contract and especially the pay to be paid clause which obliged the shipowner to pay the liability before paying the insured sums. This amount should in any event be imitated to that provided for in the aforementioned Convention to which both the United Kingdom and Spain are parties.

On the basis of the Arbitration Act 1996 the Club obtained a High Court judgment in accordance with the terms of the arbitral award. It was upheld on appeal by Spain. For its part, the competent British court had been asked to recognise the Spanish decision ordering the enforcement of the Club's civil liability. The High Court of Justice of England and Wales granted that application in May 2019. Following an appeal by the Club against the recognition, the Court (in the last days before Brexit) referred a question to the CJEU for a preliminary ruling in relation to the interpretation of Regulation 44/2001 in relation to the judgment approving the specific arbitration carried out. Essentially they aimed to establish the exclusion of arbitration (judgment under the award).
and the application of Art. 34 of the R. in view of the incompatibility of the English and Spanish decisions. Advocate General Collins issued his conclusions in May 2022. He defended the Club's position, applying the contract subject to English law and maintaining that Spain should have initiated arbitration proceedings in London to claim payment from the London P&I Club. The Court, however, departed from this approach and handed down its judgment on 20 June
of 2022, in which it essentially maintains: That the arbitration proceedings in London which sought to enervate the criminal proceedings opened in Spain to demand the civil liability derived from the offence were initiated after the opening of the criminal investigation, and therefore incurred the defect of international lis pendens, with the result that these proceedings are not valid and that the direct action of the injured party against the civil liability insurance is immune from the submission clause contained in the insurance contract. It also denies the validity of the pay to be paid clause against injured third parties. It therefore concludes that the judgment under the English award cannot block recognition of the Spanish judgment ordering the insurer to pay damages.

This judgment must now be interpreted by the English court of origin in the context of English law.

Although the United Kingdom is no longer part of the EU, the Withdrawal Treaty provides for initial claims until 31 December 2020, so that European law continues to apply to this issue, as demonstrated by the preliminary ruling by the court, without prejudice to the fact that judicial practice is moving away. It presents other problems: the CJEU does not address the limitation of liability derived from the 1992 Convention that is present in arbitration, but not in the judicial decision. Moreover, both the Brussels I Regulation and its Recast Regulation (EU) 1215/2012) - albeit in more limited terms than the proposal - exclude arbitration from its scope. However, the doctrine of the Court of Justice has traditionally excluded lis pendens, in order to avoid situations such as the so-called Italian torpedo (Art. 27.1 Brussels I and As.-116/02, Gasser). In our case the singularity of the protection of the injured parties is added, also in line with the Court's other judgments on insurance contracts. Therefore, although it has an important reading in favour of the Spanish court decision, its recognition may pose problems and cannot be extrapolated to other cases in its entirety, especially in relation to arbitration approval rulings. Among the many lessons that the Prestige tragedy has taught us is the need to modify international regulations on the responsibility of the captain and effective controls to ensure seaworthiness, singling out the environmental disaster as opposed to the current limitation of liability. It also highlights the increasing shielding of the English legal system after Brexit, as it has no international framework other than the insufficient one of the Hague Conference if the extension of the Lugano Convention does not succeed.