19/10/2017 - CONTRACTS EXECUTED BY ELECTRONIC MEANS AND THE VALIDITY OF THE JURISDICTION CLAUSE. DEVELOPMENTS IN THE ITALIAN SUPREME COURT CASE LAW
The Italian Supreme Court has confirmed that a clause conferring exclusive jurisdiction contained in the general terms and condition of a contract, concluded by electronic means, satisfies the requirements provided for by article 23 (2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in case such general conditions are accepted by ‘click-wrapping’.
According to the Italian Court, the method of accepting the general terms and conditions of a contract for sale by ‘click-wrapping’ constitutes a communication by electronic means which provides a durable record of the agreement, within the meaning of Article 23(2) of Council Regulation (EC) No 44/2001, where that method makes it possible to print and save the text of those terms and conditions before the conclusion of the contract. The decision of the Italian Supreme Court confirms the case law of the European Court of Justice (Case C322/14 – 21 May 205).
The case at stake concerned a sale and purchase agreement executed, by electronic means, between an Italian company (buyer) and a German company (seller). The parties exchanged the order and the order confirmation by email. In the purchase order form, drafted by the German company and signed by the Italian company, the former included its general conditions of sale, with the jurisdiction clause. The general conditions of sale were introduced via a hyperlink to the website of the German company. The Court ascertained that through the website, the buyer could access the general conditions of sale, print them out and/or save the text.
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avv. Sondra Faccio