Available documents (45)
sorted by (Publication date descending, Resource ascending) Add to selection
Quick view
Refine your search
Italy / 15 June 2000 / Italy, Corte di Cassazione (Supreme Court) / Generalscavi srl v. Voest Alpine Bergtecnik GmbH / 8163
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)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
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)
Original LanguageAdobe Acrobat PDF
Joseph Schohl / The Italian Arbitrato Irrrituale and its Enforceability under the New York Convention: Spier v. Tecnica / 2(2) The American Review of International Arbitration 226 (1991) - 1991
Author(s) Joseph Schohl Source 2(2) The American Review of International Arbitration 226 (1991) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Italy Worldcat Number Worldcat : 749535005 
ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3057&opac_view=6
Author(s) Andrea Giardina Source 7(1) Journal of International Arbitration 77 (1990) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Italy Worldcat Number Worldcat : 769440619 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3056&opac_view=6
Author(s) Antonio Braggion Source 18 International Business Law 412 (1990) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Italy Worldcat Number Worldcat : 769443263 ISBN 978-90-411-3011-2 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3055&opac_view=6
E/CONF.26/L.49 - Report of Working Party No. 1 on Reservations- 04/06/1958
Comments Report of Working Party n°1 on reservations during its meeting held on 4 June 1958 Date 04/06/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.6. Reports of Working Party I: 2-4 June 1958 Country Poland | United Kingdom | Ceylon | Norway | Italy Applicable NYC Provisions I Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3370&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Date 02/06/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.5.Further Amendments to the Draft Convention Submitted by Governmental Delegations - 29 May -3 June 1958 Country Italy Applicable NYC Provisions I Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3366&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Comments Report of Working Party n°1 established at the United Nations Conference on Internal Commercial Arbitration (its 7th meeting held on 23 May 1958) Date 02/06/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.6. Reports of Working Party I: 2-4 June 1958 Country Colombia | France | India | Israel | Italy | Turkey | United Kingdom Applicable NYC Provisions I | III Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3368&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Date 29/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.3. Comparison of Drafts Relating to Articles III, IV and V of the Draft Convention - 29 May 1958 Country Netherlands | Sweden | Israel | Pakistan | France | Japan | Yugoslavia | Poland | United Kingdom | Switzerland | Italy Applicable NYC Provisions IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) Language(s) English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3359&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Date 29/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.5.Further Amendments to the Draft Convention Submitted by Governmental Delegations - 29 May -3 June 1958 Country Italy | Netherlands Applicable NYC Provisions V | V(2)(a) Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3363&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Date 23/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Italy Applicable NYC Provisions I Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3330&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Date 22/05/1958 Classification (first level) B. United Nations Conference On International Commercial Arbitration: Documents Classification (second level) B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958 Country Austria | Belgium | France | Italy | Netherlands | Sweden | Switzerland Applicable NYC Provisions I Language(s) French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3320&opac_view=6 Attachment (1)
Read DocumentAdobe Acrobat PDF
Italy
Date of accession 31 January 1969 Instrument of accession Law No. 62 of 19 January 1968
Date of entry into force 1 May 1969 Reservations No reservation
National Arbitration Act in force Italian Code of Civil Procedure Articles 806-840 [Original in Italian, online: Altalex] as amended by Legislative Decree No 40, dated 2 February 2006
Domestic Court with jurisdiction over recognition and enforcement of foreign award President of the Corte di Appello (Court of Appeal) of the place of domicile of the party against whom the recognition or enforcement is sought, with a specific competence to the Corte di Appello di Roma (Rome Court of Appeal) in cases where said party has its domicile abroad (as per Article 839 of the Italian Code of Civil Procedure).
Author(s) and Contributor(s) Centre of Documentation of the Italian Supreme Court
Vincenzo Speciale (Gaillard Banifatemi Shelbaya Disputes)More information... https://newyorkconvention1958.org/index.php?lvl=cmspage&pageid=11&menu=584&opac_view=-1
