Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino
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Switzerland / 16 August 2019 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2019.132
Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 16 August 2019 Case number 14.2019.132 Applicable NYC Provisions II | II(2) | IV | IV(1) Source http://www.sentenze.ti.ch/ (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages Italian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5661&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 27 March 2017 Case number 14.2016.297 to 14.2016.304 Source http://www.sentenze.ti.ch/ (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages Italian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5660&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 22 August 2012 Case number 14.2012.102 Applicable NYC Provisions V | V(1) | V(1)(e) | VII Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy in favor of X, and was declared enforceable by the Tribunale Ordinario di Roma (First Instance Court of Rome). Y requested the Corte d’Appello di Roma (Rome Court of Appeal) to suspend enforcement of the award. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from the Ufficio d’esecuzione di Lugano (Debt Collection Office of Lugano), against which Y raised an objection (opposizione) which was dismissed (rigetto definitivo) by the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y appealed, arguing, inter alia, that the award, on the basis of which the payment order was issued, disregarded the requirements of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which required that awards rendered in Italy, in order to be recognized and enforced in Switzerland, had to have been declared enforceable in Italy. It argued that the payment order had been issued before the Corte d’Appello di Roma had rejected Y’s request to suspend enforcement of the award in Italy, and that the Ufficio d’esecuzione di Lugano should not have issued the payment order until the award had become binding on the parties. The Camera di esecuzione e fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thereby dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. It held that while Article VII NYC reserves the application of multilateral or bilateral agreements entered into by the Contracting States, the Federal Council had expressed the view that a party may rely on the most favorable provisions in any international agreements having the same scope as the NYC. Based on this, the Tribunale d’Appello held that X could rely on the provisions of the NYC, which were less restrictive than the Convention between Switzerland and Italy concerning the recognition and enforcement of foreign awards regarding the documents required to be provided by a party seeking recognition and enforcement. The Tribunale d’Appello also ruled that Article V NYC does not require the award to be recognized and enforced in the country where it is rendered, but only that, under Article V(1)(e), recognition and enforcement of foreign awards may be refused if the party opposing enforcement could show that the award had not yet become binding on the parties, or had been set aside or suspended by a competent authority in the country where it was rendered. It added that Y’s request to suspend enforcement of the award in Italy had been dismissed and that under Italian law, an action to set aside an award does not have a suspensive effect. In this context, the Tribunale d’Appello held that the award was enforceable, justifying the dismissal of the objection. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1291&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 December 2010 Case number 14.2010.98 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy and was declared enforceable in Italy by the Tribunale Ordinario. Y initiated an action before the Corte d’Appello (Court of Appeal) to have the award set aside. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from an Ufficio d’esecuzione. Y raised an objection (opposizione) against the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the award had not yet become binding on the parties because the action to set aside the award was still pending in Italy. The Pretore dismissed Y’s objection, holding that the Corte d’Appello in Italy had not suspended the enforceability of the award. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal), dismissed the appeal, thereby dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. It held that X had complied with the provisions of Article IV(1) NYC by providing the original arbitration agreement and a certified copy of the award. It also noted that Article V(1)(e) did not require that the award be declared enforceable in the country in which it was made in order to be recognized and enforced abroad, unless such was required by the law of the country where it was rendered. The Tribunale d’Appello found that Italian law did not set such a requirement and that thus the award had become binding on the parties. It also observed that the Corte d’Appello in Italy had not suspended the enforceability of the award pursuant to Article VI NYC. Finally, the Tribunale d’Appello held that the award complied with the provisions of Articles V(2)(a) and V(2)(b) NYC, in that the subject matter of the dispute was capable of settlement by arbitration under Swiss law and that recognition and enforcement would not be contrary to Swiss public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1292&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 22 February 2010 Case number 14.2009.104 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) | VI Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The parties, X and Y, entered into a remission agreement (accordo di remissione), which referred to a collection agreement (accordo di riscossione) to which Y was not a party. A dispute arose and following arbitration proceedings in the United States under the American Arbitration Association, an award was rendered against Y. Upon application by X, an Ufficio d’Esecuzione (Debt collection office) in Switzerland issued a payment order against Y’s assets. Y raised an objection against the payment order (opposizione) and X sought dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that (i) it had not consented to arbitration, (ii) it had not been given proper notice of the arbitration proceedings, and (iii) an action to have the award set aside was pending before the courts of California. The Pretore granted Y’s objection, holding that the remission agreement upon which X relied did not contain an arbitration clause, but only referred to the collection agreement for arbitration, to which Y was not a party. X appealed, arguing that the arbitration clause had been reproduced in its entirety in the remission agreement and that as the courts of California had not suspended the enforceability of the award, it was binding upon the parties. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) overturned the decision of the Pretore, thus dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law Act, the NYC is applicable to the enforcement and recognition of foreign awards. In this regard, it held that X had complied with the provisions of Article IV(1) and IV(2) NYC by providing certified copies and translations of both the arbitration agreement and award. It then found that the award complied with Article V(1)(a) NYC because the arbitration clause in the collection agreement, to which Y was not party, had been reproduced in the remission agreement signed by Y. The Tribunale d’appello also ruled that Y had been able to present its case and had received proper notice of the arbitration proceedings in accordance with Article V(1)(b) NYC. It held further that the courts of California had not suspended the enforceability of the award pursuant to Article VI NYC, thus the award had become binding on the parties in accordance with Article V(1)(e) NYC. Finally, the Tribunale d’Appello rejected Y’s claim that the award violated Swiss public policy, reasoning that as Y had been able to present its case in accordance with Article V(1)(b) NYC, the award was not contrary to the provisions of Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1293&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 27 November 2008 Case number 14.2008.78 Applicable NYC Provisions II | II(2) | IV | IV(1) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in the United States, and was subsequently confirmed by a US court. Upon application by X, an Ufficio d’Esecuzione (Debt collection office) in Switzerland issued a payment order against Y on the basis of the judgment of the US court confirming the award. Y raised an objection against the payment order (opposizione) and X sought to have the objection dismissed (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the Ufficio d’Esecuzione could not issue the payment order on the basis of the US judgment. The Pretore dismissed the opposition and Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) allowed the appeal, holding that the payment order should not have been issued based on the US judgment. It first noted that under the US “doctrine of merger”, a US court could confirm an award rendered in the United States with the effect that the judgment of the US court and the award become one and the same. It then held that Swiss law did not have the doctrine of merger and under Swiss law, the payment order had to be based on an enforceable award. The Tribunale d’Appello also observed that pursuant to Article 194 of the Federal Act on Private International Law (“PIL Act”) the NYC is applicable to the enforcement and recognition of foreign awards and held that X had not complied with the provisions of Article IV NYC as it had not provided the original arbitration agreement and a duly certified copy of the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1294&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 05 February 2003 Case number 14.2002.81 Applicable NYC Provisions III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(2) | V(2)(b) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation rendered an award in Moscow, which X relied upon to obtain a payment order from the Ufficio di Esecuzione di Lugano (Debt Collection Office of Lugano). Y raised an objection (opposizione) to the issuance of the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y argued that the exchange rate applied in the payment order was erroneous. In the alternative, Y argued that (i) the arbitration agreement was invalid pursuant to Article V(1)(a) NYC, (ii) the arbitrators had decided on a claim which did not fall under the arbitration agreement, constituting a breach of Article V(1)(c) NYC, and (iii) the arbitrators had failed to rule upon one of Y’s claims, in violation of Articles V(1)(b) and V(2)(b) NYC. The Pretore dismissed the objection, confirming the exchange rate which had already been used in a previous payment order issued by the Ufficio di Escuzione di Lugano. It further held that as Y had failed to question the validity of the arbitration agreement during the arbitration proceedings, it could not now raise the objection in enforcement proceedings. Lastly, the Pretore found that Y’s other arguments pertained to the merits and were thus outside its jurisdiction. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) upheld the appeal, granting Y’s objection to the payment order and thus refusing enforcement of the award. The Tribunale d’Appello noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the provisions of the Federal Act on Private International Law. In the present case, the Tribunale d’Appello found that the NYC was applicable because (i) the parties had not challenged its applicability, (ii) the seat of the arbitration was located abroad, and (iii) there was no bilateral convention between Switzerland and Russia for the enforcement of foreign awards. Pursuant to Article III NYC, which provides that awards shall be enforced in accordance with the rules of procedure of the territory where the award is relied upon (Swiss law in the present case), the Tribunale d’Appello held that X’s request for dismissal of the objection should be rejected since it had failed to demonstrate that the exchange rate was accurate, as required by Swiss law. The Tribunale d’Appello did not address the other arguments raised by the parties. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1296&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 16 September 2002 Case number 14.2002.00042 Applicable NYC Provisions II | II(2) | IV | IV(1) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The parties entered into an agreement which provided for arbitration in Moscow under the International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation. A dispute arose and X obtained a favorable award. Y sought to have the award set aside in Russia, arguing that it had been unable to present its case and that the subject-matter of the dispute was not capable of settlement by arbitration. Both the District Court and the Supreme Court of Russia dismissed Y’s claims. X applied to the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in Switzerland and obtained a payment order, to which Y raised an objection (opposizione). X requested dismissal of the objection (rigetto definitivo) before the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano), which granted dismissal. The Segretariat Assessore found that X had complied with the requirements of Article IV NYC and rejected Y’s claims by referring to the decisions of the Russian courts in the annulment proceedings. Y appealed, arguing that its claim that its right to present its case had been violated should have been assessed on the basis of Articles V(1)(d) and V(2)(b) NYC and not the Russian decisions, and that the arbitral tribunal had dealt with the issue of the termination of the agreement although it did not fall within the scope of the arbitration agreement, which, according to Y, was limited to disputes relating to the performance of the agreement. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thereby dismissing Y’s objection to the payment order and allowing the enforcement of the award to proceed. It first noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the Federal Act on Private International Law. It then held that the NYC was applicable as the seat of the arbitration was located abroad and there was no bilateral convention in force between Switzerland and Russia concerning the enforcement of foreign awards. Based on this, the Tribunale d’Appello found that X had complied with the requirements of Article IV(1) NYC by providing certified copies and translations of the arbitration agreement and the award. It held that though the violation of the right to be heard is governed by the provisions of Article V(1)(b) NYC, it relied on the rulings of the Russian courts regarding this issue. It rejected Y’s other claims under Articles V(1)(d) and V(2)(b) NYC, holding that Y had failed to produce any evidence in support of its claims. Finally, with respect to the scope of the arbitration agreement (Article V(1)(c) NYC), the Tribunale d’Appello stated that it was not bound by the rulings of the arbitral tribunal and of the Russian courts and concluded that the parties had agreed to submit all disputes arising out of the agreement (whether related to its performance or its termination) to the same arbitral tribunal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1297&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 April 1998 Case number 14.97.00075 Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary A payment order was issued in 1994 by the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in favor of X. Y raised an objection (opposizione) to the payment order and X requested dismissal (rigetto definitivo) of the objection before the Pretore del Distretto di Lugano (First Instance Court of Lugano), relying on an award rendered in its favor in Geneva on 14 March 1997. In response, Y argued that the award was not yet enforceable, given that the enforcement procedure set forth in the NYC and Articles 192-194 of the Federal Act on Private International Law had not been implemented. The Pretore dismissed Y’s objection, holding that the NYC was not applicable to an award rendered in Geneva. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) affirmed the decision of the Pretore, holding that the NYC was not applicable in the present case. The Tribunale d’Appello noted that the NYC governed the recognition and enforcement of foreign awards, which were defined as awards rendered by an arbitral tribunal seated abroad irrespective of the nationality of the parties and the applicable law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1299&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 April 1998 Case number 14.97.00076 Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary A payment order was issued in 1992 by the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in favor of X. Y raised an objection (opposizione) to the payment order and X requested a dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano), relying on an award rendered in its favor in Geneva on 14 March 1997. In response, Y argued that the award was not yet enforceable given that the enforcement procedure set forth in the NYC and in Articles 192 and 194 of the Federal Act on Private International Law had not been implemented. The Pretore dismissed Y’s objection, holding that the NYC was not applicable to an award rendered in Geneva. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, confirming that the NYC was not applicable in the present case. In this respect, the Tribunale d’Appello noted that the NYC governed the recognition and enforcement of foreign awards, which were defined as awards rendered by an arbitral tribunal seated abroad irrespective of the nationality of the parties or the applicable law. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1298&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 07 August 1995 Case number 14.94.00021 Applicable NYC Provisions III | IV | V | V(1) | V(1)(a) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) | VII | VII(1) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy on 22 December 1993. Upon X’s request, the Ufficio d’Esecuzione di Lugano (Debt Collection Office of Lugano) issued a payment order, to which Y raised an objection (opposizione). X requested the dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). In response, Y relied on Article VII NYC and claimed that X had not complied with the provisions of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which provided that the award had to be enforced in Italy first, and that absent such enforcement the award had not yet become binding on the parties pursuant to Article V(1)(e) NYC. Y also argued that (i) the award was null and void according to Article V(1)(d) NYC, since the arbitrators had not complied with the 90 day time limit to render the award, (ii) it had been unable to present its case, in violation of Article V(1)(b) NYC, because the arbitrators had continued with the proceeding after Y’s counsel resigned, (iii) the arbitration agreement was null and void pursuant to Article V(1)(a) NYC since the subject-matter of the dispute was not capable of settlement by arbitration under the law applicable to the agreement (i.e. Italian law), (iv) the award was contrary to Swiss public policy because Y had been unable to present its case, and (v) the arbitrators had not complied with the arbitration agreement because they had decided ex aequo et bono instead of applying the law. In response X argued, inter alia, that pursuant to Article III, the award had become binding on the parties as soon as it had been signed by the arbitrators, irrespective of its recognition and enforcement in Italy. The Pretore rejected Y’s arguments and dismissed the objection. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thus dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. Referring to Article VII(1) NYC, the Tribunale d’Appello noted that the Federal Council had decided that a party seeking to recognize or enforce a foreign award could either rely on the provisions of the NYC or on any other more favorable provisions contained in a convention binding Switzerland or under Swiss law. As a consequence, the Tribunale d’Appello held that X was entitled to rely on the provisions of the NYC, which do not require obtaining the award to be enforced in Italy in order to be recognized and enforced in Switzerland. It further held that, pursuant to Article V(1)(e) NYC, the award became binding on the parties as soon as it was signed by the arbitrators. The Tribunale d’Appello rejected Y’s claim that it had been unable to present its case, holding that it had had sufficient time to appoint a new counsel but had failed to do so. It also dismissed Y’s objections that the arbitration agreement was null and void according to Article V(1)(a) NYC, and that the subject-matter was not capable of settlement by arbitration. Lastly, the Tribunale d’Appello held that the recognition and enforcement of the award did not violate Swiss, recalling that according to Swiss case law and doctrine, such violation occurred only when the recognition or enforcement of the award was against the most fundamental rules of Swiss law, which was not the case here. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1300&opac_view=6 Attachment (1)
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