Proroga tacita e domanda riconvenzionale nel regolamento Bruxelles I bis

Does the filing of a counterclaim, by a defendant who challenged at the outset the jurisdiction of the seised court, entail a tacit prorogation of jurisdiction if the defendant fails to specify that the counterclaim merely constitutes a subsidiary defence, i.e., that one that the court should consider only if it dismisses the defendant’s jurisdictional challenge? The question was recently addressed by the Italian Court of Cassation by an order of 12 April 2024 (No. 9971). The Court held that, by contesting the jurisdiction of the seised court in unequivocal terms, the defendant effectively prevents tacit prorogation from occurring, no matter whether he failed to spell out the subsidiary character of the counterclaim. The article analyses the issue from the angle of Art. 26 of the Brussels I bis Regulation, whereas, in its decision, the Supreme Court relied, unconvincingly, on Articles 4 and 11 of the Italian Statute on Private International Law. The paper presents two opposing views on the nature of tacit prorogation, that is, the view whereby prorogation operates objectively, and the view that assimilates tacit prorogation to an expression of will by the defendant, and submits the former is more persuasive. Against this background, the article discusses the reasons put forward by the Court to reach the above conclusions.