- Tribunale di Brescia
SERVICE CONTRACT - BETWEEN AN ITALIAN COMPANY AND AN ENGLISH COMPANY - DIFFERENT LANGUAGE VERSIONS
DIFFERENT FORUM SELECTION CLAUSE IN THE TWO VERSIONS - APPLICATION OF ARTICLE 23(C) OF EC REGULATION N. 44/2001 AND ARTICLE 4.7 UNIDROIT PRINCIPLES - EXCLUDED BECAUSE THE TWO VERSIONS WERE NOT DIFFERENT TRANSLATIONS OF A COMMON ORIGINAL TEXT BUT WERE STIPULATED ONE AFTER THE OTHER AND THEREFORE THE SUBSEQUENT VERSION PREVAILS AS THE EXPRESSION OF THE NEW INTENTION OF THE PARTIES
Company A lodged an opposition to an order for payment issued on request of company B for the payment of a service (the research and selection of private surveillance companies and the management and coordination of the security services). Company A based her opposition on various grounds, including the lack of competence of the seised court. Indeed, according to company A’s defence the competent court is X, as provided by the English version of the contract, and not Y (the court seised) as provided by the version translated in Italian. Company A argues that the English text prevails over the Italian translation according to Article 23 letter (C) Regulation 44/2001 and Article 4.7 of UNIDROIT Principles.
The court dismissed the opposition. In particular, the claim based on Article 23 letter (C) Regulation 44/2001 and Article 4.7 of UNIDROIT Principle is rejected because the provisions mentioned are not applicable to such a case since they imply that the two versions are a mere translations of a common text. On the contrary, in the case under the scrutiny of the court, what can be perceived is not an ambiguity in the translation, but a serious discrepancy corresponding to a changing willing of the parties. Therefore, the criterion to be applied is the chronological order of the contracts that entails the prevalence of the last contract.
(cf. C. Martinetti in "Perspectives in Practice of the UNIDROIT Principles 2016", IBA Publication 2019, p. 214-215)