|
||||||||||||||||||
| Abstract | ||||||||||||||||||
| ||||||||||||||||||
| A French seller and an Italian buyer entered into two agreements for the sale of textiles. When the buyer discovered that the goods were defective, it brought an action against the seller before an Italian court claiming a reduction of the price plus damages. The seller objected to the jurisdiction of the Italian court on the ground of a forum selection clause in favor of the French courts inserted in its standard terms, allegedly incorporated into the contract. The seller also asserted that, in any case, French courts had jurisdiction over the case by virtue of Art. 5 of Council Regulation (EC) no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter: the Regulation), according to which, in matters relating to a contract, defendant may be sued in the courts for the place of performance of the obligation in question. The buyer asserted that the forum selection clause in favor of a French court in the seller’s standard terms could not be held valid since it had not at any time been known to or accepted by the buyer, and that the Regulation was not applicable since it entered into force after the conclusion of the two contracts.
The Supreme Court held that the Italian court did not have jurisdiction over the case. In reaching this conclusion, it first of all found that the Regulation did apply since the claim had been brought after the Regulation had entered into force. Secondly, the Court denied that the parties had validly agreed upon a forum selection clause. In the opinion of the Court, none of the criteria set out in Art. 23 of the Regulation had been met: the clause had neither been accepted by the buyer in writing nor evidenced in writing (Art. 23, lit a, Regulation); nor was it possible to consider the clause as having been implicitly accepted by the buyer on account of the fact that buyer had rendered performance (payment of price) under the contract without objecting to the seller’s standard terms (incorporating the forum selection clause). Contrary to what the seller had asserted, such conduct by the buyer did not reveal the existence of an agreement on the forum selection clause between the parties or the existence of a practice between them to this effect (Art. 23, lit. b). Lastly, it could not be argued that the clause had been accepted in a form which accords with an international usage of which the parties were or ought to have been aware (Art. 23, lit. c, Regulation), since the seller did not give evidence of the existence, in the specific trade concerned, of a usage concerning incorporation of forum selection clauses into the contract and the buyer's failure to object to the seller’s standard terms could not per se represent adequate proof of the objective existence of such a usage. Instead the Court found grounded the seller’s argument that jurisdiction was vested in the French courts pursuant to Art. 5 of the Regulation. Contrary to the Brussels Convention which merely states that a person domiciled in a contracting State may be sued in the court for the place of performance of the obligations in question, the Regulation expressly provides that, in the case of a sales contract, the place of performance is the place “where the goods were delivered or should have been delivered” (Art. 5(1)(b)). Considering that the Regulation aims to provide for an autonomous and uniform set of rules governing the matter, the Court found that, in order to determine the place of delivery under Art. 5(1)(b) of the Regulation, Art. 31(a) CISG was to be applied. As a result, since in the case at hand the goods had been handed over to the first carrier for transmission to the buyer partly in France and partly in Belgium, and the “CIF” term contained in the contract did not mean that the parties had agreed upon delivery in Italy, jurisdiction by the Italian Courts had to be denied. |