Decision of the Court of Cassation, I Civil Section, No. 11027 of 22 February 2016

This decision followed judgment No. 23893/2015 of the United Sections. In that decision the Court of Cassation stated that Iraq does not enjoy exemption from Italy’s civil jurisdiction in the proceeding concerning the termination of a contract for the sale of helicopters from Italian companies, which could not be longer executed due the ‘embargo’ decided against Iraq by the UN Security Council and the EU Council, after its armed attack against Kuwait. The United Sections referred decision on other arguments put by the Iraqi government and the Rafidain Bank in their counterclaims to the First Civil section. Through decision No. 11027 of 2016, latter confirmed that the international documents imposing sanctions against Iraq rendered the contract ineffective. The Court further excluded the possibility of applying certain contract clauses as requested by the counter claimants. In particular, the clause that envisaged embargo or other restriction in commercial relations as force majeure ‘according to the international practice’ clearly referred to events independent from contractors’ behaviors. It was, thus, inapplicable to the case, which concerned, in the Court’s word, “an internationally serious wrongful act, i.e. war of aggression conducted by the contracting State against another, and thus provoking international sanctions, which in no way can be regarded as justifying non-execution of the contract”.