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Bruxelles I bis Regulation: Irrelevance of ex-works clauses for the purpose of jurisdiction

Foreign court decisions

Bruxelles I bis Regulation: Irrelevance of ex-works clauses for the purpose of jurisdiction

The united senates of the Italian Court of Cassation clarified on 24.05.2022 (judgement no. 83521/2020) that the agreement of an ex-works clause is irrelevant for the jurisdiction. An EXW clause Incoterms ("pick-up clause") states that the seller sells his goods ex-works and that he neither undertakes the transport nor bears the costs incurred for this.

An Italian seller sued for payment in Italy and the English buyer was successful in claiming international lack of jurisdiction. Although in the specific case the clause was only included in the invoice and thus not validly agreed, even if the EXW clause had been validly agreed, there would have been no indication of jurisdiction due to place of performance within the meaning of Art. 7 of EU Regulation No. 1215/2012. In the opinion of the Italian supreme court, this was merely an agreement regarding costs and risks from which no clear determination of the place of performance could be inferred.