The dispute between the insured shipowner and the insurers over the indemnity for the total loss of the fishing vessel Kapitan Veselkov, which sank in the Gulf of Guinea, brought before the Italian Supreme Court (Corte di Cassazione) the complex issue of interpreting and applying a specific provision on jurisdiction allocation: Article 31(2) of Regulation (EU) No. 1215/2012 (Brussels I-bis). This article provides an exception to the ordinary rules of international lis pendens, establishing that:
"Where a court of a Member State on the basis of an agreement referred to in Article 25 has exclusive jurisdiction, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement."
In this case, the insured party filed two parallel payment order proceedings before an Italian court, seeking payment from the hull and machinery insurers following the vessel’s loss. The insured relied on:
- the forum of the leading insurer (in Italy)
- an Italian jurisdiction clause contained in a policy schedule (capitolato) attached to and referenced in the special terms of the insurance policy, despite the policy being governed by English law.
The insurers, parties to the subscription policy, appeared in the Italian proceedings and raised a preliminary objection to jurisdiction, arguing firstly that the policy’s special conditions contained a valid jurisdiction clause in favour of the English courts, which prevailed over the Italian clause mentioned in the general form attached but not specifically incorporated and, secondly, that the Italian proceedings should be stayed in favour of the English court proceedings, even though the English court was seised second, invoking precisely the exception provided in Article 31(2) of Regulation (EU) No. 1215/2012.
In the meantime, the insurers had brought an action against the insured before the High Court of London, requesting, as a preliminary matter, a declaration that the Italian payment order proceedings violated the exclusive jurisdiction clause in favour of the English courts.
The Italian Supreme Court, ruling on competence regulation appeals that challenged the Italian court’s decision to stay the proceedings pending the English court’s decision, confirmed the correctness of the stay. The Court held that, based on a prima facie assessment, there was a valid exclusive jurisdiction agreement in favour of the English courts, contained in the special conditions of the insurance policy, which prevailed over the Italian jurisdiction clause invoked by the insured, as the latter was contained in an attached Italian form but was not expressly incorporated.
