CASE 1

HEADS OF JURISDICTION – LIS ALIBI PENDENS

Case A

S, a company established in Valencia (Spain), sold to B, a company domiciled in London

(UK), several spare parts of a machine which B has installed in its factory situated in
Tunis (Tunisia). The contract was concluded under the following conditions: “FOB
Valencia”, with destination to the port of Tunis and B shall designate the vessel on which
the goods are be transported. Under the contract – evidenced by the order and the delivery
note – the parties did not include a choice of court agreement nor a choice regarding the
applicable law to the contract.

A dispute arises between the parties: B refuses to pay the price of the spare parts to S
alleging that they were not in conformity with the contract since they were not adapted to
the oldest model of its machine; whilst S argues that it is not liable for such breakdown
and thus considers that it is entitled to receive the full payment of the price.

Questions:

1.- S decides to initiate proceedings against B before the courts of Valencia. Considering
that the spare parts were transported to the port of Tunis, could the Valencia courts affirm
jurisdiction over the dispute?

2.- If B decided to initiate proceedings against S and race to the English courts, could they
affirm jurisdiction over the dispute?

Sources:

ECJ C-87/10 Electrosteel

ECJ Car Trim
Brussels Ibis Regulation
Rome I Regulation
CISG: https://www.cisg.law.pace.edu/cisg/text/treaty.html
Case B

Saper, GmbH, a company domiciled in Berlin (Germany), concluded a long-term

agreement with Blanch, S.A., a company domiciled in Barcelona (Spain). Under the
agreement, which was concluded orally in English and evidenced by several emails
exchanged between the parties (also written in English) following a meeting celebrated in
Barcelona in 2015; Blanch undertook to supply Saper with special induction valves which
Saper uses in manufacturing diesel engines sold to oil extraction companies all over the
world. Blanch also agreed not to supply its high-end range of induction valves to any other
company in Germany, in exchange for an undertaking by Saper to buy a minimum number
of these high value products every year.
In June 2018, Blanch sent an email to Saper informing it that it wished to modify their
agreement in order to be able to sell the high-end range of valves to other companies in
Germany and broaden its market share. In its reply, Saper, visibly furious, alleged that
such a change amounted to a substantial breach of their agreement and decided not to pay
some of the invoices issued by Blanch.
Saper is preparing a claim seeking damages for what it argues amounts to a substantial
breach of contract by Blanch, and which wants to be filed in the courts of Berlin
(Germany). However, while preparing the claim, its lawyer finds out that all the invoices
that Blanch had issued to Saper included, at the back, the general terms and conditions of
Blanch, S.A, written in Spanish (“Condiciones Generales de Blanch, S.A.”), with a choice
of court agreement in favour of the courts of Barcelona (“Los tribunales competentes en
caso de litigio serán ventilados ante los tribunales de Barcelona”).

Questions:

1.- Is the choice of court agreement conferring jurisdiction to the courts of Barcelona and
included in the general terms and conditions of Blanch, S.A., valid as to its form?

2.- Suppose that Saper sues Blanch before the courts of Berlin seeking damages for breach
of contract and, 5 days later, Blanch sues Saper before the courts of Barcelona claiming
payment of the invoices along with interests. How should these MS courts proceed in
order to avoid conflicting decisions? Is of any relevance the fact that the courts of
Barcelona have been determined in the general terms and conditions of Blanch
notwithstanding that the validity of that choice of court agreement is to be judicially
determined?

3.- Suppose that Saper contests before the courts of Barcelona the substantive validity of
the choice of court agreement included in the general terms and conditions of Blanch.
Which law would determine whether such an agreement is materially null and void?

4.- Let as suppose that there were no choice of court agreement and Saper wants to sue
Blanch which is domiciled in Oslo (Norway). Which courts would have jurisdiction over
the dispute? In your answer, justify whether the agreement concluded between the parties
is to be characterised as a contract of sale of goods or as a provision of services.

Sources

ECJ C-24/76 Salotti

ECJ C-222/15 Höszig
ECJ C-64/17 Saey Home & Garden
ECJ C-381/08 Car Trim
ECJ C-116/02 Gasser
Brussels Ibis Regulation
Lugano Convention 2007
Rome I Regulation
Art. 10 Spanish Civil Code