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| Abstract | ||||||||||||||||||
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| An Italian company (seller) entered into a long-lasting relationship with a Dutch company (buyer) for the distribution of special mirrors. Faced with financial difficulties, the Dutch company delayed some payments; the Italian company then declared the contract terminated and obtained an order for payment before an Italian Court. The Dutch company objected to that order, claiming, inter alia, that the jurisdiction was vested in the Dutch courts pursuant to a forum selection clause in its standard terms that was incorporated intoin the contract by virtue of Art. 23. lit. (b) of the European Council Regulation no. 44/2001 on jurisdiction and recognition and enforcement of judgements in civil and commercial matters (hereinafter: the Regulation).
The Court confirmed that the Italian judge had jurisdiction to hear the case, holding that the requirement set out in Art. 23. lit. (b) of the Regulation for a forum selection clause to be validly concluded (namely, that such a clause is in a form which accords with practices which the parties have established between themselves) was not satisfied in the case at hand. In particular, the Court rejected the argument that the forum selection clause in favour of the Dutch Courts, printed on the reverse side of any order submitted by the Dutch company to the Italian company, had been tacitly accepted by this latter executing the order. Although CISG, as the law governing the merits of the dispute (Art. 1(1)(a)), allows a contract to be concluded by a conduct indicating assent (Art. 18 CISG), the Italian company had given evidence that it usually sent confirmations of order to the other party wherein its general conditions were reproduced, and the other party would sign them and return them back. In the opinion of the Court, it meant that the contract between the parties had been concluded by the exchange of written communications, not by conduct indicating assent. The Court then addressed the issue as to whether the requirements set out in Art. 23, lit. (a) of the Regulation (namely, that the agreement conferring jurisdiction is in writing or evidenced in writing) was satisfied in the case at hand. By answering in the negative, the Court firstly established that to determine whether or not standard terms are incorporated into a contract governed by CISG, the general rules on contract formation provided for by the Convention should apply. Then, relying also on foreign case law applying CISG, the Court found that under CISG stardard terms are deemed validly incorporated into a contract if they are printed on the reverse side of a document embodying the proposal, provided that the front side of such document makes an express reference to those terms. However, the Court excluded that in the case at hand the buyer's standard terms had become part of the contract. In reaching this conclusion, the Court held that, pursuant to Art. 8 CISG, in order for standard terms to be validly incorporated into a contract, the addressee of the proposal must be aware of such terms; in particular, it follows from the general principle of good faith in international trade (Art. 7(1) CISG) and the parties' duty to cooperate and to give information deriving therefrom, that in an international sales contract the user of standard terms has to render such terms accessible to the other party. To the contrary, in the case at hand there was no evidence that the seller had knowledge of the buyer's standard terms; as a result, the forum selection clause in favour of the Dutch Courts could not be considered as validly agreed upon between the parties. Finally, the Court held that the result would not have differed had the requirements set out in Art. 23 lit (a) and (b) of the Regulation been satisfied. In fact, the seller had demonstrated that the order confirmations sent to the buyer, which cointained its standard terms and therefore amounted to counter-offers (Art. 19 CISG), had been signed by the buyer, thereby becoming binding on it. |