Jurisdiction in the international sale of movable property.

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Often the parties, who enter into an international contract of sale of movable goods, omit for various reasons to decide and define which court is competent to decide on a possible dispute concerning the contract itself.

In the absence of such a choice, it is necessary to identify the parameters dictated by the Regulation 44/2001. The same provides that:

- the court where the defendant has its residence is competent to decide (Art. 2.1);

- "a person domiciled in the territory of a Member State may be sued in another Member State" and specifically, in the case of the sale of goods, "the place, situated in a Member State, where the goods were delivered or should have been delivered under the contract" (Art. 5.1(b)).

E.g. An Italian company sells goods to a Swedish company. The parties agree that the goods are to be delivered to a dealer based in Spain. The Swedish company delivers the goods on time, but the Swedish company fails to perform.

The Swedish company wants to take legal action and turned to a lawyer for clarification.

Ex .art 2,1 reg. 44/2001 in this case (in the absence of choice of the parties) the competent jurisdiction is that of the defendant, i.e. the Swedish Jurisdiction.

In any case, theArticle 5.1(b) provides as a special forum, in the alternative, the court of the place where the goods were delivered or should have been delivered (Spain).

Therefore, the Italian seller (to his surprise) will have no right of action in Italy to demand payment for his goods.

It is important to emphasise that according to a United Sections of the Supreme Courtthis principle is also applicable where the seller intends to sue for the mere payment of the consideration.

On this point, the Supreme Court stated that 'on the subject of the international sale of goods, Article 5(1)(b) of the EC Regulation No. 44/2001 of 22 December 2000, is to be interpreted as meaning that, in contracts of sale, the obligation relied on in the action is to be understood as meaning not the obligation relied on by the plaintiff but the obligation characterising the contract and, therefore, in contracts for the sale of goods, that of delivery of the goods; Therefore, even in the case of an action relating to the mere payment of the consideration, the place to be considered, for the purposes of jurisdiction, is the place of delivery of the goods, which, if not established in the contract, will have to be identified with reference to the principles already affirmed by the ECJ, the place being determined according to the conflict rules of the court seised."[1]

ABSTRACT

in the absence of choice it is competent to adjudicate also on questions concerning the payment of consideration:

  • the court where the defendant has his residence (Art. 2. reg. 44/2001)
  • the court where the goods were to be delivered (Art. 5 reg. 44/2001)
  • even in the case of an action relating to the mere payment of consideration, the place to be considered, for the purposes of jurisdiction, is the place of delivery of the goods

 

[1] Civil Cassation 2009 No. 3059 Giust. civ. Mass. 2009, 3, 479

 

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by admin