This contribution, prepared by attorney Antonio Vigliotti, was published in N&T Plus Diritto – Il Sole 24ORE
The Court of Cassation has recently ruled on matters of jurisdiction and competence.
In particular, with judgment no. 37159 of 29 November 2021, the Supreme Court held that “in matters of territorial jurisdiction, the implicit extension of a contract’s effectiveness beyond its temporal limits does not confer an exclusive character to the conventional forum“.
In the case at issue, a company filed a motion for a ruling on jurisdiction against a judgment of the Court of Naples, after opposing an injunction decree that condemned it to pay a sum of money as consideration for a supply contract.
The claimant company requested recognition of the exclusive conventional forum of the Court of Rome, and therefore the lack of jurisdiction of the Court of Naples, based on an explicit provision indicated in the contract executed between the parties.
The claimant argued that the invoices subject to the motion for an injunction decree referred to services among which there was factual continuity, as all were attributable to the same supply contract, and therefore the derogation of territorial jurisdiction should apply to all of them.
The Supreme Court, however, referring to its own precedent (judgment no. 21362 of 6 October 2020), reiterated that a forum has exclusive jurisdiction only in the presence of an express and unequivocal declaration from which the parties’ mutual intention to exclude the jurisdiction of all ordinary forums results.
Conversely, the presence in the contract of clauses expressly designating the forum as exclusive and of others that do not provide for exclusivity, as occurred in the case at hand, renders the contractual intention to exclude other forums equivocal.
The Court of Cassation, with judgment no. 40548 of 17 December 2021, ruled instead on matters of jurisdiction, following a motion filed by a Swedish company.
That company, in relation to a dispute brought before the Court of Rome and concerning compensation for non-pecuniary damage suffered by an Italian company, contended that the exclusive jurisdiction of the Swedish judge should be recognized since, pursuant to Article 7, paragraph 2, of Regulation (EU) no. 1215/2012, a person domiciled in one Member State may be sued in another Member State, in matters of civil liability, whether intentional or unintentional, before the court of the place where the harmful event occurred or may occur.
According to the Swedish company’s argument, the harmful conduct should have been considered as occurring in Sweden since the damaging facts, namely certain defamatory online publications, were in the Swedish language and appeared on Swedish websites.
The Court of Cassation held that the jurisdiction of the Italian judge exists where potentially harmful publications were nonetheless accessible and retrievable also in Italy, regardless of the language used for communications, with only the place of dissemination and not the place of publication being relevant to the connecting factor.
The Supreme Court further rejected the second ground of appeal raised by the claimant company, according to which, pursuant to Article 25 of Regulation (EU) no. 1215/2012, the action was to be considered within the jurisdiction of the Swedish judge as it concerned the negative determination of contractual performance, since, although the action brought by the Italian claimant company was of an extracontractual nature, it was intended to pursue a claim for damages based on alleged contractual breaches by the Swedish company.
The Court of Cassation reasoned that where a clause provides for jurisdiction in favor of the foreign judge over all disputes relating to a series of contracts, it cannot be extended to compensation claims that have an extracontractual nature, as in the case at hand, in which the existence of a contractual relationship between the parties represented merely a factual element.
