Switzerland / 09 December 2010 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2010.98
| 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. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
