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CISG CASE PRESENTATION

Italy 10 March 2000 Corte di Cassazione [Supreme Court] (Krauss Maffei AG v. Bristol Meyer Squibb S.p.A.)
[Cite as: http://cisgw3.law.pace.edu/cases/000310i3.html]

Primary source(s) of information for case presentation: UNCITRAL abstract

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Case identification

DATE OF DECISION: 20000310 (10 March 2000)

JURISDICTION: Italy

TRIBUNAL: Corte di Cassazione, Sezioni Unite

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 58/00

CASE NAME: Krauss Maffei AG v. Bristol Meyer Squibb S.p.A.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (defendant)

BUYER'S COUNTRY: Italy (plaintiff)

GOODS INVOLVED: Industrial machines for filtering and drying of chemicals for antibiotics


Case abstract

ITALY Corte Suprema di Cassazione 10 March 2000

Case law on UNCITRAL texts (CLOUT) abstract no. 646

Produced with permission of UNCITRAL

Abstract prepared by Maria Chiara Malaguti, National Correspondent, and Rocco Palma

An Italian buyer and a German seller concluded a contract for the sale of two industrial machineries to be used in the filtering and drying of intermediate chemicals for antibiotics and to be installed by the latter in Italy. Upon installation, the machineries turned out to be defective. The buyer forthwith notified the seller of non-conformity of the goods with the contractual specifications and commenced an action before an Italian court claiming breach of contract, and consequent recovery of the purchase price and damages. The seller objected to the jurisdiction of Italian courts and referred the case to the Supreme Court on the grounds that (1) the parties, by exchange of letters, had given their implied consent to submit any dispute to an arbitral tribunal; (2) according to art. 31(a) CISG, the place of performance of the obligation, in the meaning of art. 5(1) of the 1968 Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, was to be intended as the place of delivery of the goods to the carrier (i.e. Germany).

In deciding the case, the Supreme Court first rejected the argument of the claimant concerning the existence of a valid arbitration clause. The Court, recalling abundant Italian case-law on the relevant articles of the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards and the 1961 Geneva Convention on International Commercial Arbitration, pointed out that the will to refer any dispute to foreign arbitrators must unequivocally result from the contract and cannot be inferred from documents drafted and signed by one of the parties.

The Court further held that, in order to determine the place of performance of the obligation, the CISG was not applicable. In the Court's view, the place of delivery of the goods to the carrier was to be considered irrelevant, since, in the case at hands, the contractual clauses providing the obligations of the seller to install the machineries at the factory of the buyer in Italy and to guarantee their well functioning were to be deemed preponderant. Therefore the Supreme Court, pursuant to Italian law, concluded that the Italian judge had jurisdiction.

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Classification of issues present

APPLICATION OF CISG: No

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 31(a)

Classification of issues using UNCITRAL classification code numbers:

Unavailable

Descriptors: Unavailable

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Italian): Iurisdata (database); Diritto e Giustizia (2000) 11, p. 32; Foro Italiano (2000) I, p. 2226; Rivista di diritto internazionale private e processuale (2000) 773; excerpt in Giustizia civile, Massimario (2000) 501

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Italian: Simone, Giustizia civile (2000) I, p. 3203

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Pace Law School Institute of International Commercial Law - Last updated March 2, 2007
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