Dan Cahoy wrote:
> 
> Whoops, didn't mean to send that to the listserv (sorry everyone -- I swore
> I'd never do that).  Just a gentle dig, Peter!  Seriously, thanks to you and
> everyone else for the advice.  These are issues that I've been considering
> for a while and your point is well taken.
> 
> Take care!
> 
> On 3/30/04 9:27 PM, "Dan Cahoy" <[log in to unmask]> wrote:
> 
> > Ha!  Hey, Peter, that's pretty funny.  You really had me going there.  But
> > then I realized that no one would so aggressively and directly call a
> > colleague's judgment into question without knowing more about the facts of
> > the situation.
> >
> > Take care!
> >
> > -Dan
> >
------------------

Dear Dan,

In fact, this is the sort of research that large US law
firms, aided by lawyers from the relevant foreign country,
often get badly wrong.  The following cautionary tale is
from one of my articles:  the court's understanding of the
Italian law was almost the opposite of the actual position,
despite the testimony of an Italian "expert."  It is
especially on point here, because your student wishes to
study an aspect of Italian law, but I have made the same
kind of point repeatedly about various foreign legal
systems.

Peter W. Schroth


        3.  IDV North America, Inc. v. Illva Saronno, S.p.A.[46]

        Illva Saronno, S.p.A., an Italian company, makes Amaretto
di Saronno, a liqueur.  Under a 1986 agreement, it granted
to International Distillers and Vintners, Ltd.
("IDV-London"), an English company and a subsidiary of Grand
Metropolitan PLC, the exclusive right to sell Amaretto di
Saronno in the United States.  The actual distributors in
the United States were IDV-London's subsidiaries, Paddington
Corporation and Heublein International.
        In 1997, Paddington was merged into Heublein, which changed
its name to IDV North America, Inc., and their parent
company, Grand Met, merged with Guinness PLC to form Diageo
PLC.  Illva Saronno considered that the resulting, far
larger corporate group would "inevitably relegate Amaretto
di Saronno to the status of one product amongst many others
. . . in a situation of open conflict and competition within
the new structure."[47]  Illva Saronno gave notice that it
was terminating the distribution agreement on the ground
that the change of control constituted a contractual
termination event.
        The distribution agreement provided that it was governed by
Italian law and gave the Court of Milan, Italy, jurisdiction
to decide all disputes.  Illva Saronno filed suit there in
March 1998, asking the court either to terminate the
contract or to declare that it had been terminated already
by the distributors' breach.  Two months later, in May 1998,
IDV North America filed this action in Connecticut, seeking
damages, a declaration that Illva Saronno had no cause to
terminate the contract and an injunction requiring continued
performance.  Illva Saronno moved to dismiss on the grounds
of the forum selection clause, forum non conveniens and lack
of personal jurisdiction.
        Personal jurisdiction was based on section 33-929(f) of the
General Statutes, in that the contract was to be performed
in Connecticut.  The defendant argued that its performance
was wholly in Italy, but the plaintiffs argued, and the
court agreed, "that performance of the agreement in
Connecticut by the plaintiffs alone is sufficient to satisfy
the statute."[48]  As to the due process requirement of
minimum contacts, not only did the contract contemplate
performance in the United States, including Connecticut, but
the defendant's representatives or employees met regularly
with the plaintiffs' employees in Connecticut during the
course of their relationship.
        The distribution agreement gave the Court of Milan
jurisdiction, but did not specify that the jurisdiction was
exclusive.  The court pointed out that both Connecticut
courts and other courts in the United States usually hold
that a contractual choice of forum is not exclusive unless
its language indicates that exclusivity was intended[49] and
cited Italian Supreme Court decisions said to be to the same
effect.[50]  In the absence, in the court's view, of a "true
conflict"[51] it seems not to have mattered, but the court
found also that Italian law applied to the interpretation of
the forum-selection clause, essentially because there was a
sufficient connection to Italy and no showing of a
"materially greater" connection to Connecticut.[52]
        In our opinion, article 17 of the Brussels Convention[53]
required a finding that the choice of the Italian forum made
the forum-selection clause exclusive as a matter of Italian
law.  In reaching the opposite conclusion, Judge Teller, as
his common-law training required, focused on Italian
precedents to a greater extent than an Italian court usually
would.  We can't say he was wrong to do so, but the two
Italian cases cited do not support the conclusion that the
Italian courts do not "interpret Article 17 of the Brussels
Convention as operating to transform any choice of forum
into an exclusive one."[54]  For Iuliucci v. Merlo
Metalmeocanica,[55] there is a full report in Giurisprudenza
Italiana, from which it is clear that the contract gave the
court of Cuneo, Italy, jurisdiction, but the plaintiff's
action was brought in the court of Avellino, Italy.  Article
17 does not apply if both parties and the selected forum are
all in the same country and the Brussels Convention is not
mentioned at all in the report.  As to La Svizzera Soc.
Anonima Assicurazioni Generali v. Cavalli, the sentence
quoted in IDV North America, Inc. v. Illva Saronno, S.p.A.
is an English translation of a one-sentence report of the
holding in Massimario Annotato della Cassazione,[56] so
perhaps the defendant's expert had no more than this. 
However, there is a full report in a UTET database on
cd-rom,[57] from which it is clear that the facts were
similar to those of Iuliucci:  the general conditions of the
insurance policy provided for jurisdiction in the town where
the insured resided, which in this case was Pontenure,
Italy, but the insurance company, legally domiciled in Rome,
sued in Genoa, Italy.  Again, the Brussels Convention did
not apply and was never mentioned.
        In short, the Italian cases cited may well state the
Italian domestic law when no treaty is involved, but in
Italy -- like most countries other than the United States --
treaties outrank domestic law.  If the domestic courts are
in doubt[58] about the interpretation of a European Union
treaty, such as the Brussels Convention, they are required
to refer the question to the Court of Justice.  A leading
case in the latter Court is Sanicentral GmbH v. Collin,[59]
which appears to be directly on point, holding that article
17 applies and overrides even specifically contrary national
law.  In Sanicentral, a French national was employed under a
contract specifying jurisdiction of the German courts, which
was not permissible under French law.  The treaty was held
to override the French law, so that the German courts had
exclusive jurisdiction and the employee's action in a French
court had to be dismissed.
        If the Brussels Convention applies, there can be no such
thing as forum non conveniens, because the Convention
requires any court in the EU having jurisdiction -- which,
in this case, can only be the Court of Milan -- to accept
the case.  However, having concluded that the Convention did
not apply, the court proceeded to discuss forum non
conveniens at length.
        It is important to make a distinction here:  in most of the
cases in which it is asserted, there is no competing lawsuit
pending and forum non conveniens amounts to no more than
"this action should be brought in a more appropriate
place."  When a competing lawsuit is pending elsewhere,
however, the court should take into account the Conflict of
Jurisdictions Model Law, which was enacted in Connecticut in
1991 and is now sections 50a-200 - 50a-203 of the General
Statutes.
        Section 50a-202 lists fourteen factors to be considered in
the determination of the adjudicating forum.  The court
never mentioned section 50a-202, but instead relied heavily
on Miller v. United Technologies Corp.[60] and Picketts v.
International Playtex, Inc.[61]  These were actions in tort,
neither of which involved competing fora and both of which
were decided before the statute was enacted.  In Illva
Saronno, the court's forum non-conveniens analysis was
rather good, but it was not a conflict-of-jurisdictions
analysis based on the statutory factors.  The court
concluded that the forum non conveniens factors it
considered did not weigh sufficiently in favor of the
Italian forum to justify dismissal on this ground.  However,
in the interests of "judicial economy and the conservation
of resources," the court stayed the Connecticut proceeding
"until the Italian action is resolved or further order of
the court."[62]

46.     1999 Conn. Super. LEXIS 2540 (9 Sept. 1999).

47.     This sentence is from a translation of the Italian "writ
of summons," id. at *5 n. 2.

48.     Id. at *12.

49.     Id. at *31-*32.

50.     Id. at *38.

51.     See Brainerd Currie, The Disinterested Third State, 28
LAW & CONTEMP. PROB. 754, 778 (1963); same, Notes on Methods
and Objectives in the Conflict of Laws, 1959 DUKE L.J. 171,
176. 

52.     Id. at *34-*35.

53.     The first sentence of art. 17 provides:

If the parties, one or more of whom is domiciled in a
Contracting State, have agreed that a court or the courts of
a Contracting State are to have jurisdiction to settle any
disputes which have arisen or which may arise in connection
with a particular legal relationship, that court or those
courts shall have exclusive jurisdiction.

1968 Brussels Convention on Jurisdiction and the Enforcement
of Judgments in Civil and Commercial Matters (consolidated
version), 1998 O.J.E.C. C 27, p. 1, 26 Jan. 1998, amended,
2000 O.J.E.C. C 160, p. 1,  8 June 2000.  The full text of
the Brussels Convention is available on line at
http://europa.eu.int/eur
lex/en/lif/dat/1998/en_498Y0126_01.html.

54.     1999 Conn. Super. LEXIS at *38.

55.     Cass., sez. II, 20 dicembre 1995, n. 12971, Giur. It.
1997, I, 232.

56.     Cass., sez. I, 25 marzo 1994, n. 2915, Giust. Civ. 1994,
Massimario Annotato della Cassazione, 389.  The company here
called "La Svizzera Soc. Anonima Assicurazioni Generali"
would appear to be Swiss Life (Schweizerische
Lebensversicherungs Gesellschaft) of Zurich, Switzerland,
which is usually called "Società svizzera di Assicurazioni
generali" in Italian.  If so and this was an international
case involving a Swiss party and an Italian party, the
Brussels Convention would not apply, because the parties to
this convention are the member states of the European Union.

57.     Cass., sez. I, 25 mar. 1994, n. 2915 (UTET, Cassazione
civile database).

58.     At least one of the authors considers the classic
discussion of what domestic courts in the EU should do if
they are not in doubt about the correct interpretation to be
Schroth, Marbury and Simmenthal:  Reflections on the
Adoption of Decentralized Judicial Review by the Court of
Justice of the European Community, 12 LOYOLA L.A. L.REV. 869
(1979).

59.     Case 25/79, 1979 E.C.R. 3423, [1980] 2 C.M.L.R. 164.

60.     40 Conn. Supp. 457, 515 A.2d 390 (1986).

61.     215 Conn. 490, 576 A.2d 518 (1990).

62.     1999 Conn. Super. LEXIS at *55-*56.