Switzerland / 22 February 2010 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2009.104
| 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. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
