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Workshop no. 1 Resolution of a practical case involving questions of jurisdiction
and applicable law in contractual matters
Practical case no. 1 – Cometa vs. DreamKites- Spanish Court
1. Facts
DreamKites is a French company located in Bordeaux producing high quality windkites used for kite-surfing activities.
Cometa is a Spanih company located in Valencia organizing kite-surfing courses in
different locations in Spain, different events and competition for kite-surfers. Based on a
commercial relationship of more than 5 years with DreamKites, Cometa purchases from
the French company various types of kites, surf boards, technical equipment, etc, for
resale in Spain (Fuerteventura, Tarifa, Coruna), Germany and Italy. Usually, the Spanish
company issues an order to the seller, DreamKites, via fax or email when a client of
Cometa requests a product.
Even if there is no written agreement between the two companies in this sense, the
distribution activity of Cometa covers also on line sales of DreamKites’ products by
Cometa via its website www.dreamkites.es which is designed in mainly in Spanish and
the page concerning the selling of the products can be uploaded also in English, German
and Italian language. The international edition of the magazine edited by DreamKites
mentions the contacts and the website www.dreamkites.es for ordering products
distributed by Cometa.
In February 2015, DreamKites banned Cometa from using the appellation
‘DreamKites.Espagne” and closed the website www.dreamkites.es. It informed also
Cometa that, as from December 2014, another Spanish company will have exclusive
distribution of the DreamKites’ products in Spain, through which Cometa was invited to
place its orders.
On 13 September 2015, Cometa sued DreamKites before the Valencia Court
asking for compensations for non-compliance with their distribution agreement and
additional compensation under the Spanish Law of 1981 on Unilateral Termination of
Exclusive Distribution Agreements of Indefinite Duration.1
DreamKites contested the Spanish Court’ s jurisdiction arguing that the French
court of its headquarter2 in Bordeaux has jurisdiction under Article 4 of the Regulation
1215/2012. The defendant also contested that the commercial contract between the two
parties was an exclusive distribution agreement due to the absence any written agreement
in that sense and underlined that it was a simple contract for purchase and sale concluded
on the basis of orders of Cometa.
The plaintiff responded to that objection as the parties concluded a distribution
agreement contract based on an oral agreement followed by longtime commercial
relationships in so far as Cometa was authorized to resell in Spain the products purchased
from the defendant with whom it had an exclusive relationship of distribution. Moreover,
Article 4 of the Spanish Law of 1981 on Unilateral Termination of Exclusive Distribution
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The content of the abovementioned legislation is fictional.
In the sense of statutory seat and central administration.
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Agreements of Indefinite Duration clearly states that in this case the jurisdiction for
hearing the case belongs to Spanish Courts.
2. Relevant legislation - Domestic law
The 1981 Law on Unilateral Termination of Exclusive Distribution
Agreements of Indefinite Duration
Article 1(2) - A distribution agreements is any agreement pursuant to which a
grantor reserves, to one or more distributors, the right to sell, in their own name and for
their own account, products which it manufactures or distributes’.
Article 4 - ‘If a distributor has suffered damage further to the termination of a
distribution agreement covering all or part of Spanish territory, he may in any event bring
legal proceedings against the supplier before the Spanish courts or before the courts for
the place where supplier is domiciled or has its registered office. If the proceedings are
brought before the Spanish courts, they must apply Spanish law exclusively.’
Scenario no. 1 - Tasks for the Court:
1. How will Valencia Court decide on jurisdiction? Identify the relevant
provisions applicable on this case in connection with the jurisdiction of
the competent court (Spanish or French Court).
2. Is the legal qualification of the contract concluded between DreamKites
and Cometa relevant for establishing jurisdiction in this case? Give
arguments to support the qualification of the contract.
Scenario no. 2
The plaintiff argues that the orders placed in 2015 via fax and e-mail to the
defendant contained a jurisdiction clause in favor of the Spanish Courts for all the
disputes arising from the distribution contract. The execution of that order by DreamKites
by selling the products to Cometa represented an acceptance of the jurisdiction of the
Spanish Courts as any communication by electronic means which provides a durable
record of the agreement equals to "writing" in the sense of the European Regulations.
The defendant contested that the commercial contract between the two parties was
an exclusive distribution agreement due to the absence any written agreement in that
sense and underlined that it was a series of simple sale contracts concluded on the basis
of orders placed by Cometa. Moreover, it added that Cometa acted in bad faith when
using, without having permission, the DreamKites’s brand and logo in the website
www.dreamkites.es. The defendant was of the opinion that the contract was not valid and
the eventual jurisdiction clause follows the legal regime of the main contract.
Additionally, DreamKites never accepted expressly, in unequivocal manner and in
written form such jurisdiction clause contained by some of the orders placed by Cometa.
Task for the Court:
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1. Is the jurisdiction clause valid? Identify the relevant provisions applicable
to this aspect.
Scenario no. 3
After the unexpected closing of its website by DreamKites, on 12 May 2015,
Cometa sued DreamKites before the Bordeaux Court asking for the enforcement of the
distribution contract concluded between the parties and for damages for non-compliance
with their distribution agreement.
DreamKites contested that the commercial contract between the two parties was
an exclusive distribution agreement due to the absence any written agreement in that
sense and underlined that it was a simple contract for purchase and sale concluded on the
basis of orders of Cometa.
The French court adjourned the case for different procedural aspects without
giving a ruling on its international jurisdiction in this case before the moment when
Cometa initiated proceedings before the Spanish Court on 13 September 2015 (see
Scenario no. 1).
DreamKites informed the Spanish Court about the identical claim brought by
Cometa in front of the French Court and asked the court to apply the relevant provisions
of Regulation no. 1215/2012.
Cometa stated that the two set of proceedings are not identical as cause of action
is different for each case.
Task for the Court:
1. What will Valencia Court decide on this aspect? Identify the relevant
provisions applicable to this aspect.
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