Switzerland / 22 August 2012 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2012.102
| 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. |
Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
