Switzerland / 16 September 2002 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2002.00042
| Country | Switzerland |
| Court | Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino |
| Date | 16 September 2002 |
| Case number | 14.2002.00042 |
| Applicable NYC Provisions | II | II(2) | IV | IV(1) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | 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 parties entered into an agreement which provided for arbitration in Moscow under the International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation. A dispute arose and X obtained a favorable award. Y sought to have the award set aside in Russia, arguing that it had been unable to present its case and that the subject-matter of the dispute was not capable of settlement by arbitration. Both the District Court and the Supreme Court of Russia dismissed Y’s claims. X applied to the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in Switzerland and obtained a payment order, to which Y raised an objection (opposizione). X requested dismissal of the objection (rigetto definitivo) before the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano), which granted dismissal. The Segretariat Assessore found that X had complied with the requirements of Article IV NYC and rejected Y’s claims by referring to the decisions of the Russian courts in the annulment proceedings. Y appealed, arguing that its claim that its right to present its case had been violated should have been assessed on the basis of Articles V(1)(d) and V(2)(b) NYC and not the Russian decisions, and that the arbitral tribunal had dealt with the issue of the termination of the agreement although it did not fall within the scope of the arbitration agreement, which, according to Y, was limited to disputes relating to the performance of the agreement. 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 Y’s objection to the payment order and allowing the enforcement of the award to proceed. It first noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the Federal Act on Private International Law. It then held that the NYC was applicable as the seat of the arbitration was located abroad and there was no bilateral convention in force between Switzerland and Russia concerning the enforcement of foreign awards. Based on this, the Tribunale d’Appello found that X had complied with the requirements of Article IV(1) NYC by providing certified copies and translations of the arbitration agreement and the award. It held that though the violation of the right to be heard is governed by the provisions of Article V(1)(b) NYC, it relied on the rulings of the Russian courts regarding this issue. It rejected Y’s other claims under Articles V(1)(d) and V(2)(b) NYC, holding that Y had failed to produce any evidence in support of its claims. Finally, with respect to the scope of the arbitration agreement (Article V(1)(c) NYC), the Tribunale d’Appello stated that it was not bound by the rulings of the arbitral tribunal and of the Russian courts and concluded that the parties had agreed to submit all disputes arising out of the agreement (whether related to its performance or its termination) to the same arbitral tribunal. |
Attachment (2)
 Original Language Adobe Acrobat PDF |
Unofficial Translation Adobe Acrobat PDF |
