Commercial agents operating in the EU may be granted a final goodwill indemnity, and this is a non-disposable right in any case, say the Italian Supreme Court.
The principle that commercial agents operating in the EU may be granted a final goodwill indemnity, and this is a non-disposable right in any case has been recently stated in relation to a dispute arisen between SONIC INDUSTRIES Inc., an US aerospace & defense supplier as principal, and AERENG SRL, an Italian Ltd. that acted as Sonic’s intermediary 2015 through 2020.
AERENG had sued SONIC before an Italian court of Genoa, to be granted the payment of certain outstanding commissions, and of the agent’s final indemnity although the contract provided for an arbitration to be held in Arizona.
The Genoa tribunal retained jurisdiction, and the Supreme Court upheld the decision (ruling no. 21657 of 08 Jul 2025).
The reasoning for that is based on sec. 4.2 of the Italian law no. 218/95.
In fact, some 30 years ago, a U-turn was made in the field of the Italian private international law. In fact, a bill was passed (law no. 218/1995), introducing at sec. 4.2 a new open-door policy in terms of possibility for disputing parties to skip the (otherwise applicable) Italian jurisdiction, and address instead either a foreign court, or an arbitral tribunal.
Should it be the case, any Italian court possibly asked to judge the case, has to dismiss it, provided that (a) written evidence of said derogation agreement is produced, and (b) the case does involve disposable rights.
Although in the case at hands the existence of written evidence was an issue, the decisive point was the (alleged non-disposable) nature of AERENG rights to a final indemnity, as an EU commercial agent. According to the Cassation Court, this amount to an irresistible obstacle to any choice of an avenues for disputes other than the domestic court competent for the agent’s seat.
It does not matter whether the agent is an individual, or an organization.
According to the Cassation Court, the principle applies irrespective of the fact that the agent is an individual, or an organization. In essence, the Italian Supreme Court consider all is mandatory as non-disposable.
The decision is bad news
Although this sounds like a cut-and paste of previous decisions[1], it is highly questionable, I would say[2], and certainly not applicable to an agent final indemnity (which BTW is freely negotiable, once the contract is over).
Moreover, the Cassation Cort attitude appears contrary to the spirit of many international judicial cooperation instruments, and the freedom to arbitrate, as based on the New York 1958 convention.
In any case, this is bad news for the principle of contract party autonomy in the international commercial setting.
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[1] Namely Cass. 369/99 Air Malta v Scopelliti and (impliedly) Cass. 27072/16 Maureen Skelly Bonini v The Donna Karan Co.
[2] The same Cassation Court stated in decision no. 14861/17 Club Med v Ability RA that “… the sphere of indisponibility of rights does not coincide with the mandatory nature of the rules governing them; the second set is broader than the first…”.