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IBA Litigation Committee newsletter

September 2019

Maurizio Vasciminni
Pavia Ansaldo, Rome
maurizio.vasciminni@pavia-ansaldo.it

Giovanni Gigliotti
Pavia Ansaldo, Rome
giovanni.gigliotti@pavia-ansaldo.it

Giada Russo
Pavia Ansaldo, Rome
giada.russo@pavia-ansaldo.it 

One of the most debated issues in international legal literature and case-law concerns the determination of jurisdiction when different connecting criteria may potentially apply.

The general criterion for the assignment of jurisdiction under the European Union Regulation No 1215/2012, also known as the ‘Brussels I bis’ Regulation, is the domicile of the defendant. According to Article 4 of the Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. The Regulation also provides for certain exclusions to the general criterion of the domicile of the defendant.

Pursuant to Article 7 of the Regulation, in matters relating to tort, delict or quasi-delict, a person may be sued in the courts for the place where the harmful event occurred or may occur, even if domiciled in a different Member State. This special jurisdiction criterion is based on the existence of a particularly close link between a given dispute and the courts of the place where the harmful event occurred, or is likely to occur, which justifies the attribution of jurisdiction to such courts, in order to grant a proper administration of justice and procedural economy.

In that context, taking account of the place where the damage occurred enables the particular court which is most appropriate to deal with the case to take jurisdiction, in particular on the grounds of proximity and ease of taking evidence.1

The potential time and space gaps which may occur between the harmful event and its consequences may give rise to transnational controversies in which the plaintiff claims his right before his national courts, assuming that he/she had suffered damages in his/her country, while the defendant favours a restrictive interpretation of the criteria of the ‘place where the harmful event occurred’.

The European Court of Justice (ECJ) clarified the meaning of ‘place where the harmful event occurred’,2 stating that the latter could refer both to the place where the damage occurred and to the place where the event generating the event occurred. However, this notion could not be extensively interpreted as to include any place where the harmful consequences of an event that already caused damage in another place could be felt. Therefore, the place where the injured party claims to have suffered injury as a result of an ‘initial damage’ occurred in another State cannot be considered as the ‘place where the harmful event occurred’.

In compliance with the ECJ principles, the Italian Corte di Cassazione, by Judgment No 27164/2018 dated 26 October 2018, stated that only the place where the causal event has directly produced its effects towards the immediate victim can be considered the ‘place where the event occurred’. The Court of Cassation also clarified that, in case of tort, delict or quasi-delict, the ‘place where the harmful event occurred’ is the place where the causal event, generating the liability of a crime or an offence, produced its direct damages, regardless of the place where the victim may suffer future consequences. For the purposes of jurisdiction, the Italian Supreme Court attaches importance to the distinction between ‘damage-event’ and ‘damage-consequence’.

In view of the statement by the Italian Court of Cassation, the place of the harmful event coincides both with the place where the action or omission took place and with the place of the initial damage, whereas the additional damage arising as an indirect consequence of the same action or omission is considered irrelevant. Therefore, the decision of the Italian Court of Cassation denies that the locus commissi delicti can be identified with the place where the patrimony of the victim is affected by the (indirect) consequences of the damage event.

With its judgment, the Italian Court of Cassation intends to avoid the proliferation of the so-called ‘forum shopping’ which may allow the plaintiff to sue the defendant before the national court that best suits its interests instead of the one having the strictest relation to the dispute.

 

Notes

1 ECJ, Judgment of 16 July 2009, Case C-189/08, Zuid-Chemie.

2 ECJ, Judgment of 11 January 1990, Case C-220/88, Dumez France and Others v Hessische Landesbank and Others; EU Court of Justice, Judgment of 16 July 2009, Case C-189/08, Zuid-Chemie.

 

This article was first published in the IBA Litigation Committee newsletter in September 2019, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

IBA Litigation news (September 2019): Italian court recognises EU Court of Justice principles on international jurisdiction and ‘place where harmful event occurred’

 

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