An Italian seller and a French buyer entered into an agreement for the supply of goods to be delivered in instalments. After delivery, a dispute arose as the buyer had notified the seller that the goods were defective and not suitable for their ordinary use. Failing any attempt to settle the dispute amicably, the Italian Court ordered the buyer to pay the purchase price. The buyer appealed, arguing inter alia that the jurisdiction was vested not in Italian courts, but in French courts, since according to European Council Regulation no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter: the Regulation), in matters relating to a contract defendant may be sued in the Courts of the place of performance of the obligation in question (in the case at hand: delivery of the goods, which had been made in France). Moreover, the forum selection clause in favor of Italian Courts contained in the seller’s standard terms could not be held valid since it had not at any time been accepted by the buyer in writing or evidenced in writing as required by Art. 23(a) of the Regulation. On its part, the Italian seller insisted on the fact that the forum selection clause contained in its standard terms was valid, since as provided by Art. 23(c) of the Regulation in international trade such clauses may be “in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned”. It added that, in any case, the place of performance was be determined by applying CISG, with the result that the place of delivery was to be the place of handing the goods over to the first carrier in Italy (Art. 31 CISG).
The Italian Tribunal declined jurisdiction over the case. In reaching this conclusion, it first of all pointed out that, contrary to the 1968 Brussels Convention, the Regulation expressly provides that for the purpose of Article 5(1)(b) in case of a sales contract the place of performance is the place in a Member State "where the goods were delivered or should have been delivered under the contract". Having found that the Regulation has adopted an “autonomous” notion of delivery, the Italian judge however excluded recourse to CISG (namely, to its Art. 31(a)) as a means of interpreting the Regulation, as by virtue of its own nature the Regulation prevails over both domestic and international law, and it found the place of delivery to be located in France.
The Court also rejected the seller’s argument that the forum selection clause contained in the seller’s own standard terms was valid since, being attached to the seller’s confirmation of order, such terms amounted to a new offer (Art. 19 CISG) which had not been accepted by the buyer. Nor did the seller give evidence that acceptance of the forum selection clause could be inferred by the existence of a practice between the parties (Art. 23(1)(b) of the Regulation) or an usage internationally known and observed in the specific trade involved (Art. 23(1)(c) of the Regulation)).
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