The sale of national products abroad is probably one of the most common contracts in the export business.
The importance of properly regulating international sales contracts (between an Italian seller and a foreign buyer) is often underestimated, leading to inevitable negative consequences after the sale when disputes arise between the parties.
In the event of a breach by the buyer (e.g. failure to pay the price) or the emergence of other legal disputes, the seller, in order to protect their rights, would undoubtedly prefer to bring proceedings before the courts of their own country rather than initiating litigation in a foreign jurisdiction.
However, EU regulations often do not allow free choice of the competent court, forcing the Italian seller to resort to the foreign court, thereby increasing costs and time.
The exporting seller can, however, address this issue by including the appropriate clause in the contract.
Among the most significant clauses to be included in an international contract (to protect the Italian seller), the Ex Works (EXW) clause, (in italian language, also known as "franco fabbrica") stands out.
This clause falls within the Incoterms® rules – an acronym for International Commercial Terms – which are contractual terms established by the International Chamber of Commerce that precisely define the division of obligations, responsibilities, and costs between the seller and the buyer regarding the delivery of goods.
The Ex Works clause has a significant impact not only on the rights and responsibilities of the parties involved in transportation but also on the applicable jurisdiction.
As recently reaffirmed by the Italian Supreme Court in a United Sections ruling (Cass. SS. UU. No. 11346/2023), under the Ex Works clause, the place of delivery of the goods is considered to be in Italy, thereby establishing jurisdiction in Italy.
Once jurisdiction in Italy is established, the protection of the seller's rights (including debt recovery) will naturally be more straightforward for the Italian contracting party.
Milan 18.02.2025
Avv. Giovanni Babino
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