Among the main problems of buying and selling with foreign countries, must be included the one concerning the claim to the Judicial Authority in the event of contractual breaches.

In the export transactions it is frequent that the buyer, an entity established abroad, does not pay the price of the goods purchased.

There is therefore a need to refer the matter to the Judicial Authority, and different assessments must be faced depending on whether the debtor buyer is based in a non-EU country or in an EU country.

Difficulties can be avoided by including in contracts concerning the purchase and sale of movable property, the "ex-works" clause whose validity is internationally recognized (Incoterm).

Under the ex works clause, the goods purchased must be delivered at the factory or establishment of the seller.

In the case of buying and selling of goods, concluded with entities based in non-EU countries, the inclusion of the ex-works clause (ex works) offers the seller the opportunity to bring an action before the Court in his country for a trial or an order for payment against a foreign entity established abroad.

In the case of buying and selling goods to buyers based in an EU country, it is necessary to evaluate the European Regulations that often derogate from international conventions that apply to non-EU countries.

It is therefore necessary to refer the matter to the Judicial Authority and then it is necessary to ascertain which jurisdiction is within the EU countries.

The inclusion of the ex works clause in the sales contract, and the provisions of Reg. EU 1215/2012 on jurisdiction, offers the solution.

The Reg. EU 1215/2012 with regard to jurisdiction, art. 5 provides that "persons domiciled in a Member State may be sued in the courts of another Member State only in accordance with the rules laid down in Sections 2 to 7 of this Chapter";

In the context of the purchase and sale of goods within the European Union, art. 7 letter b) of that Reg., provides that a person domiciled in a Member State may be sued in the courts of the place of performance of the obligation relied on in court. 

In the case of the sale of the goods, the place of performance of the obligation deducted shall be the place where the goods were or should have been delivered under the contract.

In view of the ex works clause, the place where the goods were or should have been delivered is the place where the seller’s domicile is located. In this way, the creditor seller can refer to the Judicial Authority of his country and does not have to address the Judicial Authority of other EU countries.

The incoterm EXW certainly represents, in the within of the exports carried out from the Italian operators, (it is estimated that approximately 80% of the contracts of export are signed with the use of such contractual clause) the preferred method for the sale of the products because, from the seller’s point of view, it represents the least binding contract in terms of obligations. The national seller succeeds in correctly fulfilling the contract, limiting himself to preparing the goods on his premises on the agreed date thus avoiding the need to identify a carrier, deal on the price, take an interest in customs formalities or in the insurance of the goods and in of all that appears to be inherent to an international shipment, but above all in the event that he must refer to the Judicial Authority avoiding to address the Foreign Judicial Authority.

 Milano, 28 July 2020

 

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