The case concerned a commercial agency agreement concluded in 2013 between an Italian commercial agency and a U.S. principal, which provided for the referral of all disputes to an arbitration tribunal seated in the United States. The territory contractually assigned to the agent was Italy: the agent’s activities were therefore carried out within the European Union and were subject to the mandatory protection provided by Directive 86/653/EEC on independent commercial agents, which has been transposed into Italian law.

 

Following the termination of the relationship, the commercial agent filed a lawsuit in the Court of Genoa seeking payment of compensation pursuant to Article 1751 of the Italian Civil Code (Codice Civile), while the principal asserted the jurisdiction of the arbitrators. Since the United States does not apply Directive 86/653/EEC on commercial agents, the arbitrators would have had to apply a less favorable regime, thereby depriving the commercial agent of the protection that is mandatory under Italian law. The Court of Cassation has ruled that an arbitration clause cannot circumvent the mandatory rights of agents provided for under Italian law in implementation of the European Directive. Thus, in commercial agency contracts with international elements, the choice of foreign arbitration proceedings may not impair the rights that the law, implementing the directive, mandatorily grants to the commercial agent.

 

This principle has practical significance that extends far beyond relations with legally distinct systems that are geographically distant or seemingly ‘exotic’, such as the United States or other overseas states. The same issue may, in fact, arise in relations with states that are geographically much closer to Italy but outside the European Union. This is the case, for example, with the Republic of San Marino. Even with regard to that legal system, there is already case law on the merits which has ruled out the validity of a clause designating the courts of San Marino as the exclusive forum, on the grounds that San Marino does not belong to the European Union, has not transposed Directive 86/653/EEC and does not guarantee commercial agents a level of protection equivalent to that mandatorily provided for by EU law.

 

The decisive criterion, therefore, is not the greater or lesser geographical distance of the State chosen by the parties, but rather the effective guarantee of the mandatory rights recognised for commercial agents carrying out their activities within the European Union. A choice of forum or arbitration clause cannot become a means by which the principal deprives the agent of the protection guaranteed by Directive 86/653/EEC and by the national legislation implementing it.