Italy: Italian Supreme Court On Jurisdiction Clauses: The Latest Installment In The Italian Side Of West Tankers

The Italian Supreme Court1 has upheld the validity of the jurisdiction clause contained in a letter of undertaking, in a decision which is the latest installment in the Italian side of the long running dispute between the insurers of the charterers of the vessel Front Comor and its owners (West Tankers).

The decision is a further success for West Tankers and their insurers (in addition to a string of favorable decisions obtained in the United Kingdom) and confirms the increasingly open approach to jurisdiction clauses that the Italian Cassazione has taken over the past few years.


The dispute is well-known and the various decisions handed down over the years have been widely commented on, therefore the facts need not be repeated in detail.

The dispute arose out of the collision of a West Tankers' vessel, the "FRONT COMOR", with a pier in Sicily belonging to Erg Petroli SpA, the Charterers.

The vessel suffered substantial damage and West Tankers commenced arbitration proceedings in England pursuant to the arbitration clause contained in the charterparty.

In 2003 Charterers' subrogated Insurers Allianz SpA and Generali, launched in turn proceedings against Owners before the Court of Syracuse (Sicily) to recover the sums which they had paid Charterers (the amount being rather substantial, above 15 millions of euro). The Owners obtained an anti-suit injunction from the English Court in 2005, but in 2009 the European Court of Justice ruled that anti-suit injunctions were incompatible with EU Regulation 44/2001.

In the meantime the arbitrators held that West Tankers were under no liability to Allianz.

West Tankers applied to the Court seeking the enforcement of the award in the same way as a judgment.  The leave was granted, Allianz appealed and the Court of Appeal upheld the decision.

Finally, the Commercial Court has held that an arbitral tribunal is not deprived of jurisdiction to award equitable damages against a party that breaches an arbitration agreement by bringing proceedings in the courts of a Member State (although anti-suit injunctions against such proceedings are no more available).

The actions brought in Italy by the subrogated insurers have been less successful thus far, and the proceedings in Sicily are currently stalled.

In the aftermath of the accident Erg Petroli took steps to arrest the vessel, and subsequently accepted a letter of undertaking issued by Gard on behalf of owners insurers IF P&C. The LOU was subject to English law and jurisdiction.

The Italian insurers however in 2004 sought the arrest of the Front Comor in the Emirates in order to obtain further security, on the grounds that the amount of damages exceeded the figure indicated in the first LOU; it was eventually agreed that the original undertaking would be extended in order to cover all the claims put forward by Erg Petroli's insurers, and another LOU was issued in May 2004.

In 2008 the Italian insurers summoned IFP&C before the Court of Trieste seeking the enforcement of LOU, alleging that the second letter of undertaking was stand-alone and should be therefore considered as independent from the previous one.

IF P&C challenged the jurisdiction of the Court of Trieste on the grounds that the LOU contained a jurisdiction clause which was perfectly valid and binding pursuant to article 23 (1) a of Council Regulation EC 44/2001. The case was referred to the Italian Supreme Court for a ruling on the issue of jurisdiction.


The Italian Cassazione has held that the clause is valid and binding. In doing so the Court has confirmed the position taken by a previous judgment handed down in 20062, where the Cassazione held that a jurisdiction clause is valid pursuant to article 23 Regulation 44/2001 even it is included in the general terms of trade submitted by one party, and the contract has been signed but with no specific reference to the jurisdiction clause.

The Court found that an element supporting the view that the clause was valid and applying to the second LOU was the fact that when discussing the extension of the first LOU the Italian subrogated insurers had sought the deletion of the jurisdiction clause, but the attempt had failed and plaintiffs had eventually refrained from insisting is such a request.

In light of the decisions handed down over the last years it seems now rather settled that:

  1. the question of whether the requirements of Article 23 Regulation EC 44/2001 are satisfied is one of EU law and not national law.
  2. unless the parties have clearly opted for a non-exclusive jurisdiction clause, the election of forum should be considered as exclusive, and it is irrelevant whether the clause identifies the court in a jurisdiction (for instance when the clause refers to the courts of England, or the courts of England and Wales as having jurisdiction)3.
  3. a party who signs a document cannot rely on the fact that it ignored the existence of the clause, or had not read it, or was somehow acting under pressure.4

The peculiarity of this case here was that the second LOU did not contain the jurisdiction clause, but simply referred to all the clauses contained in the original one; the Supreme Court has considered that the reference contained in the second LOU was suitable to incorporate (among the other provisions) the clause, by mean of a "relatio perfecta" (i.e. a proper and full reference).

The judgment is therefore reminiscent of an issue frequently discussed in proceedings where the existence of a valid arbitration clause is at stake.

Under Italian case-law the validity of an arbitration clause stipulated by means of incorporation (i.e. by virtue of a reference to a different standard form) requires the so called "relatio perfecta", i.e. specific and clear reference to arbitration.

Italian Courts have generally held that a full proper incorporation is needed, and arbitration must be explicitly contemplated by the parties,5 but a few recent decisions have attenuated such a strict approach.

The Supreme Court6 held that the clause was valid even lacking express reference to the arbitration clause, provided that the parties knew or should have known about the arbitration rules, and the position has been confirmed by a further very recent decision of the Cassazione7 holding that a reference in a contract to standard rules containing an arbitration clause is suitable to give rise to incorporation, even if no specific mention of arbitration is made, in light of Article II of the New York Convention (which contains a wide definition of the notion of 'written agreement').


The decision is rather important, because it seems a further confirmation of the trend followed by Italian Courts increasingly in favor of the validity of choice of jurisdiction clauses, abandoning the approach often taken in the past when analyzing the formal and substantive requirements set out under article 17 of the Brussels Convention 1968.

This article first appeared on the International Law Office –


1 Cassazione 9 March 2012, n. 3693, IF P&C Insurance Ltd. v. Allianz Sp.a and Assicurazioni Generali S.p.a.

2 Cassazione 27 September 2006, n. 20887, Saneco SA Toscoline S.r.l.

3 Cassazione 14 February 2011, n. 3568, Fondiaria-Sai assicuraz. c. Coscos

4 Cassazione 12 March 2012, n. 3855, Sanctuary Records Group Ltd c. Abraxas S.r.l.

5 Cassazione 19 May 2009, n. 11529 Louis Dreyfus Commodities Italia c. Mangimi Cereal

6 Cassazione 23 July 2009 n. 17312 Inter Eltra Kommerz und Produktion GmbH v Nigi Agricoltura srl

7 Cassazione 16 June 2011, n. 13231 Del Medico c. Iberprotein SL

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions