4.

The case submitted to the Corte di Cassazione concerns a contract of insurance made between an international insurance group and the International Road Transport Union. Its special feature lies in the fact, as the Court of reference clearly points out, that the Union entered into the contract in its own name but in favour of the national organizations affiliated to it: the latter are thus not parties to the contract. Let us suppose that the parties to such a contract insert a jurisdiction clause, as the Pool and the Union have done in Article 8, can the insured claim the benefit of it even though, since it is a res inter alios acta, he has not approved it in writing? To answer that question requires the precise scope of Article 17 of the Brussels Convention to be determined. As the Court is aware, according to that provision, if the parties 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”; it stipulates however, and that is the issue, that the agreement in question must be in writing or, if oral, evidenced in writing. I think that in the case of a contract for the benefit of a third person that requirement is satisfied when the parties have agreed or confirmed the jurisidiction clauses in writing. The written agreement of the third person is not necessary. I come to that conclusion on the basis of various arguments. First of all there is the purpose of the requirement in question. As the Jenard report states (Official Journal, C 59, 5. 3. 1979, p. 1), that requirement is intended to ensure legal certainty that is to say, as Mr Advocate General Capotorti observed, what is required is “clear proof that the parties were ad idem on the clause specifying the Court having jurisdiction” (Opinion in Case 24/76 Estasis Salotti v RUWA [1976] ECR 1845). A fortiori that requirement applies where one of the parties is weaker as in the case of contracts the terms of which are not negotiable but drawn up unilaterally by one party and merely accepted by the other. The Court has repeatedly recognized that reality. Thus the first of two judgments of 14 December 1976 states that where “a clause conferring jurisdiction is included among the general conditions of sale of one of the parties, printed on the back of a contract, the requirement of a writing... is fulfilled only if the contract... contains an express reference to those general conditions” (Case 24/76 above) and the second states that “in the case of an orally concluded contract” the same requirement is satisfied “only if the vendor's confirmation in writing accompanied by notification of the general conditions of sale has been accepted in writing by the purchaser” (Case 25/76 Segoura v Bonakdarian [1976] ECR 1851). In brief, the requirement of writing serves to draw the attention of the parties to the risks involved in the jurisdiction clause. It will not be forgotten that the latter excludes both the general jurisdiction provided for in Article 2 of the Convention (which refers to the domicile of the defendant) and the special jurisdiction provided for in Articles 5 and 6, unless the clause conferring jurisdiction is concluded for the benefit of only one of the parties, in which case — though this merely increases the risks — that party retains the right to bring proceedings in any other court having jurisdiction by virtue of the Convention (third paragraph of Article 17). It is necessary, however, to be careful. All I have said so far applies to the parties. Third parties who benefit from the contract without incurring the obligations and running any risks need no protection; to subject the validity of the clause to their signature would therefore make no sense. Moreover there is no legal system which requires such a measure especially in written form unless to avoid revocation of the stipulation (cf. the second paragraph of Article 1411 of the Italian Civil Code); in any event the very wording of Article 17 excludes the need in the present case. When its opening words are read “If the parties, ... have, by agreement in writing ór by an oral agreement confirmed in writing...” it is difficult not to find it decisive. It is not possible for an article of that kind to use an expression — “the parties” — otherwise than in a technical sense. Any first year law student would be ready to swear that it is not possible to include the concept of third party in that expression. By “parties” the Convention thus means “the promisee” and the “promisor”, that is to say the parties who have agreed to bring the contract into being, the one by requiring and the other by assuming the obligation as against the third party.