Court jurisdiction for cross-border contractual disputes between England and Italy (EU) – a private international law analysis

Simone Gavioli

Article written by Simone Gavioli, Litigation Executive


In our international society, it is very common for parties based in different countries (or “jurisdictions”) to enter contracts. Although the majority of business relationships and contracts work out well, some others might encounter difficulties.

In case of a contractual breach, the parties could end up in a pathological deadlock, as their contract is no longer functioning as it was supposed to, and the situation is likely to result in damages and losses to either or both parties.

If the parties cannot fix their divergence amicably, they should consider obtaining legal advice to repair the situation and restore their positions.

When dealing with international contracts, one of the first steps is to ascertain which national Court has jurisdiction and which national law is applicable to the contract.

The best drafted contracts will contain a dedicated clause agreeing these matters, but not all do. This article analyses scenarios in which two international parties entered into a contract without agreeing jurisdiction and the applicable law.

Please note that readers’ discretion is advised. This article does not represent legal advice: the following scenarios are fictional; any legal observations herein are applicable only to the given fictional scenarios and are merely academical.

Fictional background

Party A is an individual based in England and Wales.

Party B is a small family-led company incorporated in Italy with a small representative office in London.

At some time in 2024, the parties contracted on the following terms:

a) Party B to produce in Italy a set of 6 handblown blue water glasses and post them to England;

b) Party A to pay £50 when placing the order, plus £50 within 5 days of receipt of goods (£100 inclusive);

c) In case of a breach by either party, a penalty clause entitles the damaged party to claim £1,000 from the other, with compounded interest running at 10% per year.

There was no clause covering jurisdiction and / or applicable law in the Parties’ agreement. Party B has no applicable Terms and Conditions.

If either party breaches their obligations, should proceedings be started in England & Wales or in Italy?

If Brexit had not happened, Regulation (EU) 1215/2012 (the “Recast Brussels Regulation”) would have applied. Generally, the claim would have been issued either in the Country where the defendant is domiciled, or before the Court of the place of performance of the contractual obligation.

Since there is currently no applicable international legislation on jurisdiction, recognition, and enforcement of judgments in civil and commercial matters between the UK and the EU Countries, the UK has to rely on his own system of private international law.

The answer to the above question has become all but straightforward.


First fictional scenario

Party B produced green water glasses, instead of blue, therefore they are in breach of the contract.

Party A could issue proceedings in Italy, as the Defendant is incorporated there. However, Party A has to be mindful that Italian law might then be applicable to the contract.

Party A should therefore receive comprehensive legal advice, not only on jurisdiction, but also on substantial law; for example, would the contract be fully valid under Italian law if Italian law is applicable?

If proceedings were issued in Italy, the Italian Court would likely accept jurisdiction, based on the Defendant’s domicile, pursuant to their national law.

In the alternative, Party A could try to establish jurisdiction of the English Court by issuing proceedings in England and applying for permission to serve abroad.

In this case, since the Defendant is based abroad, the English Court would not automatically accept jurisdiction as Party A has to prove that his claim has sufficient connection with England. This is achieved by showing that (VTB Capital Plc v Nutritek International Corp [2013] UKSC 5.):

a) There is a good arguable case that the claim falls within one of the “gateways” listed in the Civil Procedural Rules;

b) The claim has reasonable prospect of success; and

c) England is the proper place to bring the claim.

Party A’s claim might satisfy the Gateways, since Party B has a branch in England, but legal advice and consideration are to be given to (b) and (c), bearing in mind that party B could dispute jurisdiction and submit that the English Court is not appropriate.

If the English Court declines jurisdiction, proceedings will be transferred to the appropriate jurisdiction.

Second fictional scenario

Following Party B’s breach, let’s imagine that Party A does not bring any claims, but just refuses to pay £50 upon receipt of goods.

Party A might proceed to claim payment of £50, damages, and interest.

Party A in this case has no choice. Proceedings are to be issued in England & Wales, as the Defendant (Party A) is based in England.

Subject to legal advice, Party A could dispute jurisdiction on the basis that his failure to pay derives from Party B’s earlier breach, therefore England is not appropriate, and the proceedings should be sent to Italy.

The English Court has an absolute discretion as to whether to accept or decline jurisdiction; if England jurisdiction is accepted, the claim and counterclaim will be heard in England. If not, they will be sent to Italy.


In the above scenarios, Party A has the “choice of Court,” as he can attempt issuing proceedings either in England or in Italy, whereas Party B has no choice.

Party A should exercise such choice wisely and upon consideration of further criteria, such as, although not limited to, legal costs, Court fees, applicable law, procedural rules, expeditiousness of proceedings, and so on.

There is generally no absolute right or wrong answer when it comes to a party’s choice of a Court, as it mainly depends on convenience and strategy; nonetheless, seeking advice from a litigation lawyer before entering an international dispute is highly advised to avoid issuing in the wrong jurisdiction and incurring soaring legal costs.

To discuss the contents of this update further, please feel free to email me or contact the team on 020 8858 6971.