Italy, Corte di Cassazione (Supreme Court)
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Italy / 12 July 2019 / Italy, Corte di Cassazione (Supreme Court) / Paola Poli c. Elena Poli and Claudio Massimo / 18831
Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 12 July 2019 Parties Paola Poli c. Elena Poli and Claudio Massimo Case number 18831 Applicable NYC Provisions II | II(3) Source Registry of the Court
Languages Italian see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5888&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 12 July 2019 Parties Paola Poli c. Elena Poli and Claudio Massimo Case number 18832 Applicable NYC Provisions II | II(3) Source Registry of the Court
Languages Italian see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5889&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 21 September 2018 Parties Gildemeister Energy Services Italia S.r.l. v. Ralos Italia S.r.l. Unipersonale Case number 22433 Source Registry of the Court
Languages Italian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5887&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 07 July 2017 Parties Kenobi International Ltd v. Comaco S.p.A. Case number 21655 Applicable NYC Provisions II | V Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4637&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 06 June 2017 Parties Club Med S.A.S. v. Ability Real Estate S.r.l. Case number 14861 Applicable NYC Provisions II Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4636&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 23 May 2017 Parties Bridgestone Europe NV/SA v. Conserva Holding S.r.l. Case number 21551 Applicable NYC Provisions II Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4635&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 23 May 2017 Parties Bridgestone Europe NV/SA v. Futura Enterprise S.r.l. Case number 21550 Applicable NYC Provisions II | II(3) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4634&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 09 May 2017 Parties Carnival Cruise Lines v. Arcadi Claudio Case number 17549 Applicable NYC Provisions II | III Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4633&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 25 October 2016 Parties Maureen Skelly Bonini S.r.l. v. The Donna Karan Company Case number 27072 Applicable NYC Provisions V | V(2) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4632&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 21 June 2016 Parties Doosan Benelux S.A. v. MAIE S.p.A. Case number 13725 Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3684&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 22 September 2015 Parties Governo e Ministeri della Repubblica dell’Iraq v. Armamenti e Aerospazio S.p.A., Finmeccanica-S.p.A., SELEX ES. S.p.A. a Finmeccanica Company, FIAT CIEI-S.p.A. in liquidazione and Banca Intesa S.p.A., Rafidain Bank, So.Ge.Pa – Società Generale di Par Case number 23893 Applicable NYC Provisions II | II(1) | II(3) | V | V(2) | V(2)(a) | V(2)(b) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3683&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 09 July 2015 Parties Hotel Columbus S.r.l. v. Ordine equestre del Santo Sepolcro di Gerusalemme Case number 16901 Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3682&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 04 May 2015 Parties Corpoaseo Total s.a.e.s.p. v. AMA Azienda Municipalizzata Ambiente s.p.a. Case number 17712 Applicable NYC Provisions III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | XVI Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3681&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 16 October 2013 Parties Third Millennium Company S.r.l. in liquidazione v. Guess? Inc. Case number 27734 Applicable NYC Provisions V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3680&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 08 October 2013 Parties Luxury Goods International SA v. Swaili Diffusioni S.r.l. in liquidazione Case number 24153 Applicable NYC Provisions II | II(3) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3679&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 16 June 2011 Parties Del Medico & C. SAS v. Iberprotein Sl Case number 13231 Applicable NYC Provisions V | II Languages English Summary A Spanish company (Iberprotein) and an Italian company (Del Medico) entered into an agreement by executing a standard form contract of the Grain and Feed Trade Association (GAFTA). The agreement referred to the general terms and conditions, which contained an arbitration clause. A dispute arose and an award was rendered in London on 4 April 2002 in favor of Iberprotein. By an ex parte order (decreto) issued on 17 September 2002, the President of the Corte di Appello di Bari (Bari Court of Appeal) allowed enforcement of the award in Italy. Del Medico filed a petition against the enforcement order under Article 840 of the Italian Code of Civil Procedure (opposizione) before the Corte di Apello di Bari, which was dismissed. It then applied to the Corte Suprema di Cassazione (Supreme Court), claiming that the award had been rendered on the basis of an invalid arbitration agreement. Del Medico argued that the arbitration agreement had not been expressly approved by the parties, and that the mere reference in the agreement to the general terms and conditions containing the arbitration clause did not comply with the requirement of Article II NYC that the arbitration agreement should be concluded in writing. Del Medico further alleged that the reasoning of the Corte di Appello di Bari was insufficient and contradictory in that the Court maintained, on the one hand, that the arbitration agreement was valid since arbitration agreements incorporated by reference were valid under English law, which was applicable as the law of the seat of the arbitration under Article V NYC, while noting, on the other hand, that Del Medico’s defense was grounded on the lack of knowledge of the arbitration agreement. The Corte Suprema di Cassazione affirmed the decision of the Corte di Appello di Bari and dismissed the petition against the enforcement order. It first noted that the principles set forth in Article 833 of the Italian Code of Civil Procedure (pursuant to which an arbitration clause contained in the general conditions incorporated into a written agreement between the parties is valid, provided that the parties had knowledge of the clause or should have had such knowledge by using ordinary diligence) may also be inferred from a correct reading of the NYC. It observed that such a provision is the result of an evolution aimed at overcoming formalistic difficulties in international arbitration, in compliance with Article II NYC. The Corte Suprema di Cassazione held that the definition of an “agreement in writing” under Article II NYC is broad enough to encompass an arbitration agreement entered into “per relationem imperfectam”, i.e. via a generic reference in the agreement to the arbitration clause included in the GAFTA general terms and conditions. After noting that the opposing party had not claimed that it was unaware of the GAFTA rules, it held that in its capacity of professional businessman in the field at hand, Del Medico could not pretend to have been ignorant to the GAFTA rules. The Corte Suprema di Cassazione also noted that Del Medico had failed to properly challenge the finding of the lower court and of the arbitral tribunal that English law applied to the issue of whether the arbitration agreement had been validly approved by the parties, as the law governing the main contract. While noting that Del Medico had failed to contradict this ruling, the Corte Suprema di Cassazione recalled that the arbitration agreement is autonomous and that Article V NYC provides that enforcement may be refused where the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. The Corte Suprema di Cassazione finally dismissed Del Medico’s argument that the reasoning of the lower court was contradictory. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1404&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 23 July 2009 Parties Microware s.r.l. in liquidation v. Indicia Diagnostics S.A Case number 17291 Applicable NYC Provisions IV Languages English Summary A French company (“Indicia Diagnostics”) and an Italian Company (“Microware”) entered into a contract for the supply of products, which contained an arbitration agreement. A dispute arose and Indicia Diagnostics initiated arbitration against Microware under the Rules of the International Chamber of Commerce (ICC). An award was rendered in Paris in favor of Indicia Diagnostics, for which its successor (“Indicia Biotechnology”) obtained an ex parte order (decreto) for recognition and enforcement in Italy from the President of the Corte di Appello di Venezia (Venice Court of Appeal). Microware filed a petition against the enforcement order as per Article 840 of the Italian Code of Civil Procedure (opposizione), arguing that part of the award’s order for payment concerned supplies that were extraneous to the parties’ contract and therefore not subject to the arbitration agreement. It further argued that enforcement should be denied because Indicia Biotechnology had failed to supply the original or a certified copy of the arbitration agreement when filing its enforcement application. The Corte di Appello di Venezia noted that although Indicia Biotechnology had supplied a certified copy of the contract containing the arbitration agreement, the signature on the certificate of authenticity was illegible and the capacity of the signatory was not indicated. It therefore granted Indicia Biotechnology a time limit to provide the original arbitration agreement or a duly certified copy thereof. Indicia Biotechnology complied with such a request and the Corte di Appello di Venezia partially confirmed the enforcement order, accepting Microware's challenge only in respect of the supplies that were not covered by the parties’ contract containing the arbitration agreement. Microware appealed the decision, arguing that the lower court had violated Article 839.2 of the Italian Code of Civil Procedure by disregarding the requirement that the arbitration agreement be produced at the time of the request for enforcement. The Corte Suprema di Cassazione (Supreme Court) reversed the lower court's decision and denied enforcement. It held that compliance with Article IV of the NYC (the wording of which is equivalent to Article 839.2 of the Italian Code of Civil Procedure and requires that the original arbitration agreement or its certified copy be produced at the time of filing of the enforcement request) is a condition for the admissibility of the enforcement proceedings and not just a matter of evidence. The Corte Suprema di Cassazione concluded that the supply of the original or of a certified copy of the arbitration agreement is a procedural prerequisite to be verified at the commencement of the proceedings and not a mere condition for the action, the absence of which may be cured in the course of the proceedings. However, the Corte Suprema di Cassazione noted that the lower court’s finding that the requirement of Article IV has not been met, did not preclude a new enforcement application for the same award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1406&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 23 July 2009 Parties Nigi Agricoltura srl v. Inter Eltra Kommerz und Produktion GmbH Case number 17312 Applicable NYC Provisions II | III | V | II(2) Languages English Summary A German company, Inter Eltra Kommerz und Produktion (“Inter Eltra”), entered into a contract for the sale and purchase of oil seeds with an Italian Company, Nigi Agricoltura srl (“Nigi”), through a confirmation order signed by Nigi’s broker that was sent to Inter Eltra’s broker. The order referred to the Federation of Oils, Seeds and Fats Associations (FOSFA) standard contract, which contained an arbitration clause. A dispute arose and Inter Eltra initiated arbitration against Nigi in London. Nigi failed to nominate an arbitrator due to which FOSFA appointed an arbitrator in Nigi’s place. The tribunal composed of two arbitrators rendered an award in favor of Inter Eltra, which then obtained an ex parte order of enforcement (decreto) for the award from the President of the Corte di Appello di Firenze (Florence Court of Appeal). Nigi filed a petition before the Corte di Appello di Firenze against the enforcement order under Article 840 of the Italian Code of Civil Procedure (opposizione). The Corte di Appello di Firenze held that the arbitration agreement was valid under Article 833 of the Italian Civil Code and Article II(2) NYC. It further dismissed Nigi’s allegation that the arbitral tribunal’s impartiality was affected by the even number of arbitrators, reasoning that Nigi’s argument was based on Article 809 of the Italian Code of Civil Procedure, which concerns only domestic arbitration and is irrelevant in the context of the enforcement of a foreign award, as it is not one of the grounds for refusal of enforcement provided by Article V NYC and Article 840 of the Italian Code of Civil procedure. Nigi appealed to the Corte Suprema di Cassazione (Supreme Court) on the grounds of the inexistence of the arbitration clause and of the arbitral tribunal’s lack of impartiality. Nigi first stated that no contract had been entered into between the parties because its broker would have refused to conclude the deal when it received the confirmation order of Inter Eltra’s broker, and because Inter Eltra’s broker was a third party with no mandate to accept its contractual offer. Nigi further argued that Article 809 of the Italian Code of Civil Procedure was applicable to the present case under Article III NYC (which provides for the application of the procedural rules of the place of enforcement of the award). The Corte Suprema di Cassazione affirmed the decision of the Corte di Appello di Firenze and dismissed Nigi’s petition against enforcement. The Corte Suprema di Cassazione refused to review Nigi’s factual allegations pertaining to the inexistence of an arbitration agreement between the parties, noting that the appeal was grounded on a document whose content was not even reproduced and whose relevance could not be reviewed in the proceedings on issues of law (giudizio di legittimità). It held that Nigi had failed to properly challenge the lower court’s finding that the defect related to the number of arbitrators is not a ground for refusal of enforcement under Article V NYC and Article 840 of the Italian Code of Civil procedure. The Corte Suprema di Cassazione noted that Nigi had only invoked Article III NYC, which concerns the proceedings for the enforcement of foreign awards and is manifestly irrelevant to issues pertaining to the arbitration proceedings itself or the composition of the arbitral tribunal, which were the issues invoked in this appeal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1405&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 19 May 2009 Parties Louis Dreyfus S.p.A. v. Cereal Mangimi S.r.l. Case number 11529 Applicable NYC Provisions II Languages English Summary Two Italian companies, Louis Dreyfus and Cereal Mangimi, entered into a sales contract, which referred to the general conditions of the Paris Grain Trade Association (INCOGRAIN) form no. 12, providing for arbitration before the Paris Arbitration Chamber. A dispute arose and Cereal Mangimi launched a lawsuit against Louis Dreyfus before the Tribunale di Bari (Bari First Instance Court). Louis Dreyfus raised a motion for lack of jurisdiction, based on the existence of an arbitration agreement. Both the Tribunale di Bari and the Corte di Appello di Bari (Bari Court of Appeal) held that the arbitration agreement was invalid since it was contained in a contract which had been executed by an agent whose mandate had been granted orally, in breach of Article 1392 of the Italian Civil Code, which provides that the mandate must have the same form as the main contract entered into by the agent. Louis Dreyfus appealed the decision by arguing that the arbitration agreement was valid given that an arbitration agreement is not required to be in writing ad substantiam, as a validity requirement, but only ad probationem, for an evidential purpose. The Corte Suprema di Cassazione (Supreme Court) affirmed the decision of the Corte di Apppello di Bari and rejected Louis Dreyfus’ motion for lack of jurisdiction. The Court noted that the issue of whether or not the agent needed a written mandate to conclude an arbitration agreement would most likely be of no relevance under the new wording of Article 808 of the Italian Code of Civil Procedure, resulting from the Italian arbitration law reform of 1994, which provides that the authority to enter into a contract includes the authority to enter into the arbitration clause. The Corte Suprema di Cassazione, however, avoided ruling on this issue and reached a conclusion based on different grounds, holding that the generic reference in the contract to the INCOGRAIN form did not satisfy the NYC requirement that an agreement in writing must be concluded between the parties to submit their disputes to arbitration, as per Article II NYC and Article 808 of the Italian Civil Code of Procedure. It distinguished between contracts containing an express and specific reference to an arbitration agreement contained in a separate document (per relationem perfecta), which it found were valid, and contracts containing a general reference to a separate document containing an arbitration agreement (per relationem imperfecta), which it found were not valid. The Corte di Cassazione therefore concluded that the Italian courts had jurisdiction to hear the case. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1407&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 08 October 2008 Parties Globtrade Italiana srl v. East Point Trading Ltd Case number 24856 Applicable NYC Provisions IV | III | IV(1) Languages English Summary A contractual dispute arose between an Italian company, Globtrade Italiana (“Globtrade”), and a Cypriot company (“East Point Trading”), which the parties decided to submit to arbitration in London under the rules of the Grain and Feed Trade Association (GAFTA). An award was rendered in favor of East Point Trading, which was enforced in Italy by an ex parte order (decreto) of the President of the Corte di Appello di Trieste (Trieste Court of Appeal). Globtrade filed a petition against the enforcement order under Article 840 of the Italian Code of Civil Procedure (opposizione). The petition was rejected by the Corte di Appello di Trieste, which stated that East Point Trading had submitted the original of the award. Globtrade appealed, arguing that the decision violated Article 839.2 of the Italian Code of Civil Procedure and Articles III and IV(1) NYC, since the award provided by East Point Trading was only a copy that should have been certified as being in conformance with the original and that even if the document was an original it should have been authenticated. The Corte Suprema di Cassazione (Supreme Court) overturned the decision of the Corte di Appello di Trieste and denied enforcement of the award. It held that under Article IV(1) NYC, the submission of a duly authenticated original award, or a certified copy thereof, is a prerequisite for the commencement of enforcement proceedings that must be raised ex officio by the courts. The Corte Suprema di Cassazione further held that the formal requirements of authentication are governed by the procedural rules of the place of enforcement, in accordance with Article III NYC, thus dismissing East Point Trading’s attempt to rely on the Anglo-Saxon practice of, allegedly, no notary public for authenticating documents. The Corte Suprema di Cassazione noted that it was entitled, in the instant case, to review the acts of the file because the appeal was grounded on a procedural error (error in procedendo). Noting that the award had not been duly authenticated, it concluded that the lower court was prevented from examining the request for enforcement of the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1408&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 05 January 2007 Parties Heraeus Kulzer GmbH v. Dellatorre Vera SpA Case number 35 Applicable NYC Provisions II | II(3) Languages English Summary A German company (Heraeus Kulzer) and an Italian company (Dellatorre Vera) entered into a distributorship agreement under which Dellatorre Vera would distribute orthodontic products manufactured by Heraeus Kulzer in Italy. The contract referred to an arbitration agreement contained in a separate document. An individual buyer sued an Italian intermediate seller (Merident), who had acquired Heraeus Kulzer products from Dellatore Vera, before the Tribunale di Napoli (Naples Tribunal of First Instance) on the grounds of liability for hidden defects. Merident joined Dellatorre Vera in these proceedings, which in turn joined Heraeus Kulzer based on the warranty against hidden defects. Heraeus Kulzer raised a jurisdictional objection based on the arbitration clause referred to in the distributorship agreement. In the alternative, it argued that even if the parties’ dispute was not covered by the arbitration agreement, the Italian courts would still lack jurisdiction in favour of German courts by virtue of a jurisdiction clause contained in a document attached to the distribution contract, based on Article 17 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“the Brussels Convention”). The Tribunale di Napoli found that the Italian courts lacked jurisdiction in respect of the dispute between Hereaus Kulzer and Dellatorre Vera over the existence of an arbitration agreement. The Corte di Appello di Napoli (Naples Court of Appeal) reversed the decision and upheld the jurisdiction of the Italian courts. It held that the arbitration clause referred to in the distributorship agreement could neither be extended to the third parties, which had initiated the domestic court dispute (such as Merident), nor be applied to Dellatore Vera’s warranty claim against Heraeus Kulzer. Heraeus Kulzer appealed the decision, arguing that the Italian domestic courts lacked jurisdiction since the warranty claim was based on the distributorship agreement containing the arbitration clause and the broad wording of the arbitration clause covered disputes directly or indirectly arising out of the distributorship agreement. The Corte Suprema di Cassazione (Supreme Court) reversed the decision of the Corte di Appello di Napoli. It noted that the validity of an arbitration clause relates to the merits of the case and does not constitute a jurisdictional issue. It further stated that it is an inherent part of the power of the domestic court to review the validity of the arbitration agreement, on the basis of which it waives its own jurisdiction. The Corte Suprema di Cassazione stated that such a principle is applicable even under Article II(3) NYC, which does not require that a case be referred to arbitration through a declaration for lack of jurisdiction by the domestic courts, but rather leaves it to the legal order of the contracting state to determine the mechanism by which domestic courts divest themselves of a case in favour of arbitration. According to the Corte Suprema di Cassazione, Article II(3) NYC, therefore, allows the Italian legal order to consider the issue of validity and efficacy of the arbitration agreement as an issue of admissibility of the claim rather than as an issue of jurisdiction. It held that while the Italian courts have a duty to review the validity or efficacy of an arbitration clause on a preliminary basis, they may not, however, exercise such review with respect to a foreign court. The Corte di Cassazione held that, in the case at hand, the Corte di Appello di Napoli had erred in maintaining the jurisdiction of the Italian courts after having decided that the dispute did not fall within the scope of the arbitration agreement, because it had ruled, on the wrong premise, that the interpretation of the arbitration agreement raised an issue of jurisdiction. The Corte Suprema di Cassazione further disapproved the lower court’s finding that the arbitration agreement did not apply since the dispute before the Italian court involved parties that had no contractual link with the parties to the arbitration agreement. It noted that Dellatore Vera’s warranty claim against Hereaus Kulzer was based on the distributorship agreement referring to the arbitration agreement, and that an examination of whether Dellatore Vera’s warranty claim fell within the arbitration agreement was a prerequisite to the examination of the warranty claim by the lower court. After noting that it is up to the court deciding on the merits to assess the content of the arbitration agreement, the Corte di Cassazione held that the lower court had failed to examine the text of arbitration clause and, in particular, the reference to disputes directly or indirectly arising out of the distributorship agreement. The Corte Suprema di Cassazione concluded that the lower court had failed to give reasons why such broad wording would not include Dellatore Vera’s warranty claim within the scope of the arbitration agreement. It remanded the case before a different section of the Corte di Appello di Napoli for a reexamination of the scope of the arbitration agreement and refused to examine the alternative motion for lack of jurisdiction based on the jurisdiction clause in favour of the German courts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1409&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 17 April 2003 Parties Lanificio Mario Zegna SpA v. Ermenegildo Zegna Corporation & Lanificio Ermenegildo Zegna SpA Case number 6164 Languages English Summary A dispute arose between an Italian company (“Lanificio Mario Zegna”), on the one hand, and an American company and its Italian parent company (“Ermenegildo Zegna Corporation” and “Lanificio Ermenegildo Zegna” respectively, collectively referred to as “Ermenegildo Zegna”), on the other hand, concerning the termination of an agreement for use of the Zegna trademark. The dispute was referred to the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris and an award was rendered in Paris on 16 February 1999 in favour of Ermenegildo Zegna. Ermenegildo Zegna obtained an enforcement order (decreto) for the award from the President of the Corte di Appello di Torino (Torino Court of Appeal). Lanificio Mario Zegna brought two actions before the Corte di Appello di Torino seeking (i) a declaration that the award was not enforceable in Italy and (ii) a declaration of the inefficacy of the execution order issued following the decreto of the President of the Corte di Appello di Torino. The two actions were joined and the Corte di Appello di Torino dismissed Lanificio Mario Zegna’s claim for a preventive declaration that a foreign award is not enforceable in Italy (accertamento negativo) as being inadmissible, since such a remedy is not “comparable” to the regime of the proceedings to challenge enforcement of the foreign award under Article 840 of the Italian Code of Civil Procedure (opposizione). Lanificio Mario Zegna appealed the decision based on Articles 156 and 159 of the Italian Code of Civil Procedure, arguing that its petition for a negative ascertainment should, by virtue of the principle of the conversion of juridical acts (principio della conversione degli atti giuridici), have been admitted as being equivalent to a petition against enforcement under Article 840 of the Italian Code of Civil Procedure (opposizione). The Corte Suprema di Cassazione (Supreme Court) affirmed the lower court's decision and dismissed the negative ascertainment action. It held that the admissibility of a negative ascertainment action as an atypical means of preventive protection is limited by the existence of a specific and typical instrument of protection, whose legal requirements would be circumvented by the atypical preventive claim. The Corte Suprema di Cassazione therefore approved the lower court’s ruling that Lanificio Mario Zegna’s claim for a preventive declaration of non-enforceability was inadmissible as such negative ascertainment action would have prevented Ermenegildo Zegna from availing itself of the protection of the typical proceedings against enforcement provided by Article 840 of the Italian Code of Civil Procedure (which wording is equivalent to Article V NYC). The Corte Suprema di Cassazione further dismissed Lanificio Mario Zegna’s argument that its petition for a negative ascertainment of enforceability should, by virtue of the principle of the conversion of juridical acts, have been treated as a petition against enforcement of the award under Article 840 of the Italian Code of Civil Procedure (opposizione). The Corte Suprema di Cassazione noted in this respect that conversion is possible only where the invalid action contains all the formal and material elements of the other action. The Corte Suprema di Cassazione approved the lower court’s finding that Lanificio Mario Zegna's request for a declaration of non-enforceability did not meet the conditions for conversion as it sought to produce the same effects as the opposition proceedings without establishing that the requirements for such proceedings were met. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1410&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 15 June 2000 Parties Generalscavi srl v. Voest Alpine Bergtecnik GmbH Case number 8163 Applicable NYC Provisions IV | V Languages English Summary An Italian company (Generalscavi) entered into a contract with an Austrian company (Voest Alpine Zeltweg) for renting equipment, which contained an arbitration clause providing for arbitration under the auspices of the International Chamber of Commerce (ICC). A dispute arose and Voest Alpine Zeltweg's successor, Voest Alpine Bergtecnik (“Voest”), initiated arbitration proceeding against Generalscavi. An award was rendered in Vienna by a sole arbitrator in favor of Voest. Generalscavi brought an action before the Austrian courts to set aside the award. However, as Voest stated that it intended to seek enforcement of the award in Italy, Generalscavi brought an action before the Corte di Appello di Trieste (Trieste Court of Appeal), seeking a declaration that the requirements for enforcement of the foreign award in Italy were not met under the NYC because (i) there was a dispute as to the existence of the arbitration agreement, (ii) proceedings to set aside the award were pending in Austria, (iii) the time-limit for rendering the award had not been followed, and (iv) the tribunal had breached due process. The Corte di Appello di Trieste dismissed the application, holding that such an action for a “negative ascertainment” (azione di accertamento negativo) was inadmissible as it aimed at preventing the other party from using the procedural instruments provided by Articles 839 and 840 of the Italian Code of Civil Procedure. It further held that the grounds to refuse enforcement under Article 840 of the Italian Code of Civil Procedure were not met in the instant case since (i) Voest had validly succeeded Voest Alpine Zeltweg and was therefore a party to the arbitration agreement, (ii) the pending proceedings to set aside the award in Austria could only justify the suspension of the enforcement proceedings under Article 840, (iii) Generalscavi had had full opportunity to present its case in five submissions and the arbitrator had given reasons for dismissing Generalscavi’s claims and evidence, (iv) Generalscavi had failed to object in a timely manner that the award had been rendered after the six-month time limit, and (v) there was no violation of due process rights or of any other principles of public policy. Generalscavi appealed this decision before the Corte Suprema di Cassazione (Supreme Court). Generalscavi argued that the Corte di Appello di Trieste had erred in applying Articles 839 and 840 of the Italian Code of Civil Procedure in dismissing its negative ascertainment action, as Generalscavi had had an interest to act in view of Voest’s intention to seek enforcement of the award in Italy notwithstanding the pending proceedings in Austria for setting aside the award. It further challenged the finding of the Corte di Appello di Trieste that the grounds for refusing enforcement of the award in Italy had not been met. The Corte Suprema di Cassazione dismissed the appeal and affirmed the lower court's ruling that Generalscavi's negative ascertainment action was inadmissible. It held that the Italian legal order sets limits to the admissibility of actions for negative ascertainment as a general and atypical instrument of preventive protection. It noted that one such limit exists where, in respect of a certain subject matter and interest, (i) there is a specific and typical means of protection that is subject to certain pre-requisites and conditions, and (ii) the preventive atypical protection would result in disregarding the specific legal requirements of the typical action. The Corte Suprema concluded that, in the case at hand, the preventive declaration of non-enforceability was not admissible as it would prevent the other party from resorting to the enforcement procedure of Articles 839 and 840 of the Italian Civil Code (the wordings of which are equivalent to Articles IV and V NYC). The Corte di Cassazione added that this conclusion defeated all other grounds of appeal based on the inexistence of an arbitration agreement with Voest, i.e. the setting aside proceedings pending in Austria, the time-limit for the rendering of the award, and lack of due process. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1411&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 10 March 2000 Parties Krauss Maffei Verfahrenstechnik GmbH et al. v. Bristol Myers Squibb S.p.A. Case number 58 Applicable NYC Provisions V | II Languages English Summary A contract for the supply of two industrial machines for the treatment of chemicals products was entered into between an Italian company, Bristol Myers Squibb, and a German company, Krauss Maffei Verfahrenstechnik, acting on behalf of its German affiliate, Krauss Maffei (both German companies collectively referred to as “Krauss”), through the exchange of an offer and a confirmation order. Krauss' offer provided that German law would be applicable and that disputes would be submitted to arbitration with the seat in Bern (Switzerland). However, Bristol Myers Squibb's confirmation order did not refer to these contractual provisions. Bristol Myers Squibb brought an action before the Tribunale di Latina (Latina First Instance Tribunal), claiming that the equipment installed by Krauss was defective and seeking termination of the contract, restitution of the price, and damages. Krauss objected that the Italian courts lacked jurisdiction, which, it argued, rightly lay with the German courts as the courts of the company’s domicile, based on Article 5.1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“the Brussels Convention”). Alternatively, Krauss objected that the Italian courts lacked jurisdiction on the basis of the arbitration agreement contained in the contract offer, arguing that the arbitration agreement was valid since (i) under Article 6.2 of the European Convention on International Commercial Arbitration of 21 April 1961 (“the Geneva Convention”), domestic courts shall, in order to determine the law applicable to the arbitration agreement, refer to the law to which the parties have subjected it, (ii) while Article II NYC requires an arbitration agreement in writing, Article V NYC provides for a refusal of enforcement only where the arbitration agreement is not valid under the law to which the parties have subjected it, and (iii) under German law, which had been chosen by the parties, arbitration agreements between professionals may be concluded tacitly (Article 1027 of the German Code of Civil Procedure). As permitted under the Italian Code of Civil Procedure, Krauss filed a petition before the Corte Suprema di Cassazione (Supreme Court) for a preliminary ruling on jurisdiction (regolamento preventivo di giurisdizione). The Corte Suprema di Cassazione rejected Krauss’ petition and held that the arbitration agreement was invalid. The Corte Suprema di Cassazione decided to examine first, following a logical order, the second motion for lack of jurisdiction, reasoning that the parties’ contractual agreement to submit their disputes to arbitration has priority over the domestic courts’ rules on jurisdiction. The Corte di Cassazione noted that under Article II NYC, Article 1.2 of the Geneva Convention, and the case law of the Italian courts, an arbitration clause is valid when it is contained in a document signed by both contracting parties or in an exchange of letters or telegrams. The Corte Suprema di Cassazione also referred to Italian court decisions requiring that the parties’ intention to refer disputes to arbitration, a derogation from the domestic courts’ ordinary jurisdiction, be expressed in a clear and unequivocal manner and that a restrictive interpretation of the arbitration agreement should be made in case of doubt as to the scope of the clause. The Corte Suprema di Cassazione held that an arbitration agreement contained only in the documents drawn up and signed by the seller, which does not appear and is not referred to in the document signed by the buyer, is not valid. The Corte di Cassazione concluded that the Italian courts had jurisdiction to hear the case in accordance with Article 5.1 of the Brussels Convention and dismissed the motion arguing for the jurisdiction of the German courts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1412&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 07 June 1995 Parties WTB - Walter Thosti Boswau Bauaktiengesellschaft v. Costruire Coop. srl Case number 6426 Applicable NYC Provisions IV | III | V Languages English Summary An Italian company, Costruire Coop, subcontracted certain construction works to a German company, Walter Thosti Boswau Bauaktiengesellschaft (“WTB”). The parties’ contract contained an arbitration clause providing for arbitration before the International Chamber of Commerce (ICC). A dispute arose and Costruire Coop sent WTB a notice of termination for the contract based on alleged breaches of the same, and also filed a request for arbitration against WTB. On 27 June 1988, the arbitral tribunal rendered a partial award on liability, holding Costruire Coop liable for wrongful termination of the contract. On 4 August 1989, the arbitral tribunal rendered a final award on damages. WTB sought enforcement of the final award in Italy but the Corte di Appello di Bologna (Bologna Court of Appeal) held that WTB’s petition for enforcement was inadmissible given that (i) WTB should have sought enforcement of the partial award on liability along with the final award on damages, as they constituted a single and indivisible decision, and (ii) it had not met the requirements of Article IV NYC as it had not provided the original or a certified copy of the partial award in addition to the final award. WTB appealed the decision arguing that a failure to request enforcement of the partial award on liability is not a ground for refusing enforcement of the final award on damages. The Corte Suprema di Cassazione (Supreme Court) reversed the decision of the Corte di Appello di Bologna on the ground that the request for enforcement can be limited to the final award and need not extend to the partial award on liability. The Corte di Suprema di Cassazione first observed that the new Articles 839 and 840 of the Italian Code of Civil Procedure (the wordings of which are equivalent to Article IV and V NYC did not apply to the instant case as the enforcement request had been filed prior to the entry into force of the 1994 Italian arbitration law reform. It noted that the provisions of the NYC, which are applicable and have precedence over the provisions of the Code of Civil Procedure, provide for a liberal system of enforcement and recognition of foreign awards. It added that the provisions of the NYC are at a crossroads between the view that an international arbitral award is a decision whose efficacy depends entirely on the will of the parties independent of domestic legal orders, and the more traditional view pursuant to which arbitration is connected to the domestic legal order of a State and the recognition of an award derives from a concession of other states under a condition of reciprocity. The Corte Suprema di Cassazione noted in this respect that although Article III NYC leaves it to domestic legislators to regulate the proceedings for the recognition of foreign awards, it provides that contracting states shall not impose substantially more onerous conditions or higher fees than those imposed on recognition or enforcement of domestic awards. The Court Suprema di Cassazione concluded that the NYC sets forth an autonomous micro-system for both the substantive and procedural requirements of the enforcement of foreign awards. Under such a system, the burden on the party requesting enforcement is limited to the production of certain documents required under Article IV NYC, and there is a presumption of enforceability of the award that may only be reversed by the courts ex officio on one of the two grounds of Article V(2), or by the defendant proving that one of the five exhaustive grounds for refusal of enforcement listed in Article V(1) is met. The Corte Suprema di Cassazione therefore held that in the instant case, the lower court had erred in ruling in terms of admissibility of the request for enforcement, as the only grounds for declaring such a request inadmissible are those set forth in Article IV NYC (i.e., the production of the original or of an authentic copy of the award and of the arbitration agreement) which do not include a ground of indivisibility between partial and final awards. The Corte Suprema di Cassazione held that the lower court should rather have analyzed whether Costruire Coop’s objection that the separate enforcement of the final award, allegedly aimed at avoiding a review of a non-final award that was not enforceable, could constitute a breach of one of the exhaustively listed grounds for refusing enforcement, that either has to be proven by the opposing party under Article V(1) NYC, or may be raised by the court ex officio as per Article V(2) NYC. The Corte Suprema di Cassazione concluded that absent proof by the opposing party or an ex officio finding from the court that the enforcement of only the award on damages, without the award on liability, constituted a violation of public policy or a violation of the other grounds in Article V NYC, the request for enforcement of the final award had to be granted. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1413&opac_view=6 Attachment (1)
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Country Italy Court Italy, Corte di Cassazione (Supreme Court) Date 20 November 1992 Parties Fratelli Pozzoni S.p.A. v. Graphic Security Systems Corporation Case number 12385 Applicable NYC Provisions II | II(1) | II(3) Languages English Summary An American company, Graphic Security Systems, and an Italian company, Fratelli Pozzoni, entered into a license and cooperation contract pursuant to which Fratelli Pozzoni was granted the exclusive right to produce and sell certain products and to use a patent belonging to Graphic Security Systems. The contract contained an arbitration clause providing for arbitration in New York under the Rules of the American Arbitration Association (AAA). A dispute arose and Graphic Security Systems sought and obtained an injunctive order from the President of the Tribunale di Bergamo (Bergamo First Instance Court) for the payment of certain amounts. Fratelli Pozzoni challenged the injunctive order (opposizione) by arguing that the Italian courts lacked jurisdiction over the dispute and that they should have referred the parties to arbitration in accordance with the arbitration clause in the license and cooperation contract. Fratelli Pozzoni alternatively requested that the Tribunale di Bergamo issue an order (declaratoria di continenza) with regards to proceedings it had commenced before the Tribunale di Roma (Rome First Instance Court) seeking a declaration that the patent and the contract were null and void. Pending the opposition proceedings against the injunctive order, Fratelli Pozzoni requested the Corte Suprema di Cassazione (Supreme Court) to issue a preliminary ruling on jurisdiction (regolamento preventive di giurisdizione). The Corte Suprema di Cassazione held that the Italian courts lacked jurisdiction to hear the dispute. It noted that the arbitration agreement providing for arbitration in New York under the AAA Rules was valid under the NYC even if it did not specify an arbitral body and the rules governing the arbitral proceedings, by vitue of the mere referral to international commercial usages providing such elements. Thus, in the case at hand, the reference to the AAA Rules was sufficient for the arbitration agreement to be valid. The Corte Suprema di Cassazione further stated that an arbitration agreement satisfies the written form requirement of Article II(1) NYC where it is contained in a contract signed by the parties. As a consequence, Article 1341 of the Italian Civil Code (which requires a specific approval for arbitration clauses contained in standard conditions prepared by one party) did not apply to the arbitration agreement even though the contract had been concluded in Italy. The Corte Suprema di Cassazione noted that in the instant case, the provision referring disputes to arbitration was an integral part of the contract signed by the parties and that its application was only excluded for disputes concerning the validity of the patent. The Corte Suprema di Cassazione concluded that in accordance with Article II(3) NYC, a valid arbitration agreement derogates from the jurisdiction of the Italian courts’ in respect of the disputes covered by its scope. It added that an arbitration agreement does not require a solemn or predetermined formulation, other than the written form requirement of Article II(1) NYC, as long as it shows the unequivocal will of the parties to defer their disputes to arbitration. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1414&opac_view=6 Attachment (1)
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