Judgment no. 3802 of 26 February 2016 of the Corte di Cassazione (the Italian Supreme Court) on international sales has confirmed the principle ‒which has been recently elaborated by the Court’s jurisprudence‒ of the jurisdiction of the Judge of the final place of delivery of the goods over all disputes possibly arising in connection with the performance of the contract concerning goods requiring transportation.
The dispute that gave rise to the ruling involved, in particular, the action brought before the Court of Brescia by a distributor of reconstructed stone to assess the breach of several contractual clauses by the Spanish manufacturing company.
In this regard, the Corte di Cassazione ‒confirming the decision of the Court of Appel‒ ruled against the majority of the previous decisions, which the Court of Brescia had instead adhered to, according to which the jurisdiction over international sale involving the carriage of goods, must be identified according to the combined provisions of art. 5 of EC Reg. No. 44/2001 – regarding the jurisdiction of judgments in civil and commercial matters (now replaced by Reg. No. 1215/2012) – and art. 31 of the 1980 Vienna Convention on the International Sale of Goods.
The Court of first instance had, in fact, come to consider the lack of jurisdiction of the Italian judge in favour of the Spanish Judge, in light of the occurred delivery of the goods to the carrier in Spain, in accordance with the line of decisions which considered that the place of delivery relevant for determining the jurisdiction pursuant to art. 5 EC Reg. No. 44/2001 should be that of delivery of the goods to the first carrier, as provided by letter a) of art. 31 of the Vienna Convention. Where the contract involves the carriage of goods, said article states that the seller’s obligation is fulfilled upon delivery of the goods to the first carrier for transmission to the buyer.
However, the Corte di Cassazione has not shared the above view. Indeed, it has adhered to the European line of decisions according to which the “place of delivery”, as an identifying criterion of jurisdiction, is represented by that in which the service which is characteristic of the relationship must be performed. On the basis of economic criteria, in particular, that location must be recognized in the final destination of the goods, that is to say the place where the buyer gets the material availability of the goods, regardless of where the carrier took them over and, therefore, without regard to the place where the transmission of possession of the goods occurred.
This assumption, far from being trivial, is the result of a careful interpretation of the legislation in question, in relation to which it has been specified that EC Regulation No. 44/2001 overrides the substantive provisions of the Vienna Convention on the subject, which should be interpreted as regulating only the mandatory relationships between the parties and not also jurisdiction.
Apart from the merits of the case, the decision in question has once again highlighted the importance, especially in international contracts, of the contractual provision of the Court having jurisdiction over any disputes arising from the signing of the agreement. This, in particular, both in order to avoid disputes concerning jurisdiction itself, and ‒once the economic interests underlying the relationship and the peculiarities of each contract have been considered‒ with the purpose of identifying in advance the forum which is most suitable to the parties’ needs.
The Bologna Office, in the person of Valentina Saviotti, is available to provide further details.
(Bologna Office – Valentina Saviotti – 0039(0)51 2750020)
