Switzerland / 05 February 2003 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2002.81
| Country | Switzerland |
| Court | Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino |
| Date | 05 February 2003 |
| Case number | 14.2002.81 |
| Applicable NYC Provisions | III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(2) | V(2)(b) |
| Source |
www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities |
| Languages | English |
| Summary | The International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation rendered an award in Moscow, which X relied upon to obtain a payment order from the Ufficio di Esecuzione di Lugano (Debt Collection Office of Lugano). Y raised an objection (opposizione) to the issuance of the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y argued that the exchange rate applied in the payment order was erroneous. In the alternative, Y argued that (i) the arbitration agreement was invalid pursuant to Article V(1)(a) NYC, (ii) the arbitrators had decided on a claim which did not fall under the arbitration agreement, constituting a breach of Article V(1)(c) NYC, and (iii) the arbitrators had failed to rule upon one of Y’s claims, in violation of Articles V(1)(b) and V(2)(b) NYC. The Pretore dismissed the objection, confirming the exchange rate which had already been used in a previous payment order issued by the Ufficio di Escuzione di Lugano. It further held that as Y had failed to question the validity of the arbitration agreement during the arbitration proceedings, it could not now raise the objection in enforcement proceedings. Lastly, the Pretore found that Y’s other arguments pertained to the merits and were thus outside its jurisdiction. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) upheld the appeal, granting Y’s objection to the payment order and thus refusing enforcement of the award. The Tribunale d’Appello noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the provisions of the Federal Act on Private International Law. In the present case, the Tribunale d’Appello found that the NYC was applicable because (i) the parties had not challenged its applicability, (ii) the seat of the arbitration was located abroad, and (iii) there was no bilateral convention between Switzerland and Russia for the enforcement of foreign awards. Pursuant to Article III NYC, which provides that awards shall be enforced in accordance with the rules of procedure of the territory where the award is relied upon (Swiss law in the present case), the Tribunale d’Appello held that X’s request for dismissal of the objection should be rejected since it had failed to demonstrate that the exchange rate was accurate, as required by Swiss law. The Tribunale d’Appello did not address the other arguments raised by the parties. |
Attachment (1)
 Original Language Adobe Acrobat PDF |
