The Supreme Court on the validity of the exclusive jurisdiction clause contained in a internet link

In modern business practice, the online conclusion of contracts is a more and more common phenomenon to observe. In this particular field, sometimes parties exchange their general terms and conditions through email. Other times, the conditions are integrally reproduced in the webpage where a party asks the other to agree with his terms. But, more and more often general terms and conditions can only be reached by clicking on a link and it is require to the party to declare he has ridden and agreed to them. Last September, the joint sections of the Italian Supreme Court had the chance to decide on the consistency with law of the latter of the aforementioned practices whether among the general terms and conditions figures an exclusive forum clause determining the jurisdiction of a foreign court.

It is to be noticed that, although the policy at hand makes the general terms and conditions available to the parties, the party to consult the general terms and conditions, their availability is not direct, but it is a mediate one. In other words, it requires the party to open, by clicking on the link, the webpage displaying the clauses. A party may well avoid such operation by simply declaring he has read the conditions and agrees to them. The issue, however, is even more sensitive when, as it happened in the Supreme Court case, among the general terms and conditions there are one-sided clauses like the exclusive forum elective clause for a foreign court. Moreover, it is to be considered that most of the international contracts concluded in the European Union fall within the application of Regulation 44/2001/CE (c.d. Bruxelles I Regulation now replaced by Regulation 1215/201/UE, c.d. Bruxelles I Bis Regulation) that, in relation to the choice of court clause formal requirements, tends to preserve the validity of the clause. See for instance, article 23, of the aforementioned Regulation, where it states that any communication by electronic means providing a durable record of the agreement, shall be equivalent to “writing”.

The case was about the contract of April 16th 2014 between the Italian company 6sicuro S.p.A and the German company Sociomantic Labs Gmbh. The agreement, concluded by filing a purchase order, was later undersigned and exchange by the parties through email. In that circumstance, the Italian company gave its approval to the general terms and conditions applied by the other party and accessible through a link. Afterwards, 6sicuro S.p.A. seized the Court of Milan for the other party’s breach of the contract but instead of appearing before that court, Sociomantic Labs Gmbh started to proceed for the sole jurisdiction, ex article 41 of the Italian Civil Procedure Code, before the Supreme Court of Italy. In fact, according to the latter company’s position it was the German Court of Berlin to have jurisdiction by virtue of a forum elective clause contained in the general terms and conditions. Moreover, in the opinion of Sociomantic Labs Gmbh, German court’s jurisdiction had to be exclusive pursuant paragraph 1 of article 23 of Bruxelles I Regulation.

The Italian company appeared before the Supreme Court contending that the clause had to be null and void since its content was against the 3rd paragraph of article 10 of Directive 2000/31/CE (E-Commerce Directive) where it is provided that contract terms and general conditions must be made available in a way that allows the recipient to store and reproduce them. Furthermore, in that party’s opinion the choice of court clause did not satisfy the formal requirements laid down by article 23 of the Bruxelles I Regulation and by article 25 of Regulation 1215/2012/UE (c.d. Bruxelles I bis Regulation). In addition, the Italian company reported the fact that the link was not working and thus, by clicking on it, no webpage displaying general terms and conditions appeared. Consequently, in order to consult terms and conditions it was required to the recipient to manually typing the content of the link into the searching bar.

In its decision, the Supreme Court noticed that the E-commerce directive could not find application in the specific case. In fact, as it is noticeable from paragraph 4 of article 1, the aforementioned Directive neither includes any principle of private international law nor modifies anyhow Member States judicial Authorities’ competence. This was so clear, in the opinion of the Court, to deny any hypotheses of recourring to the European Court of Justice interpretative intervention by virtue of what stated by that latter court in its Decision of October 6th 1982, on the case C-238/81 (Cilift case).

About the validity of the forum elective clause, the Court underlined that no contrast could be found with the requirements of article 23 of the Bruxelles I Regulation. The latter provision, in fact, specifies, at its 2nd paragraph, that “[a]ny communication by electronic means which provides a durable record of the agreements shall be equivalent to writing”. The Supreme Court also observed that on this specific aspect of the validity of a choice of court contained in a link in relation to the requirements of article 23 of the aforementioned Regulation, the European Court of Justice already intervened with Decision of May 21st 2015 over the case C-322/14 (c.d. Cars on the web). At paragraph 40 of that preliminary ruling, the ECJ clarifies that: “article 23(2) of the Brussels I Regulation must be interpreted as meaning that the method of accepting the general terms and conditions of a contract for sale by ‘click-wrapping’ […] which contains an agreement conferring jurisdiction, constitutes a communication by electronic means which provides a durable record of the agreement, within the meaning of that provision, where that method makes it possible to print and save the text of those terms and conditions before the conclusion of the contract”. Besides that, if the parties did not agree otherwise, such jurisdiction is to be considered exclusive by virtue of paragraph 1 of the aforementioned article. For these reasons, the Italian Supreme Court in its order of September 19th 2017, n. 21622, stated the validity of the forum elective clause and declared the lack of jurisdiction of the Italian Court of Milan.

The Supreme Court decision suggest a reflection on the way we make use of current technology and other electronic means in day-to-day business. On the one hand, it is undeniable that the diffusion of such means made easier and implemented international trades but on the other hand, being aware of the consequences of a simple “clic”, sometimes we should be more wary.