Summary
The requirement laid down in Article 23(1)(a) of Regulation (EC) No 44/2001, pursuant to which an agreement conferring jurisdiction is valid if it is in writing, is not satisfied in case of a forum selection clause contained in a form that is signed by only one of the parties. In fact, it is not sufficient for this purpose that the other party has drafted said form and has thereafter behaved in a way that confirms its adherence to said agreement. Pursuant to Article 23 of Regulation (EC) No 44/2001, the tacit acceptance of a clause derogating from Italian jurisdiction -by way of a conclusive behaviour - i.e. through the performance of the relevant contract - may occur only if, before the relevant contractual relationship, commercial transactions had taken place in which said clause has been regularly accepted in writing and constantly applied and there are no elements that may lead to presume that the will of any party is contrary to said uninterrupted practice. The notion of ‘place of delivery’ referred to in Article 5(l)(b) of Regulation (EC) No 44/2001 shall be interpreted in light of Article 31 of the Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods. Therefore, Italian courts have jurisdiction over a dispute concerning a sale and purchase contract involving the carriage of goods, if the latter have been handed over to the first carrier in Italy for their subsequent transmission to the buyer