Italy / 16 June 2011 / Italy, Corte di Cassazione (Supreme Court) / Del Medico & C. SAS v. Iberprotein Sl / 13231
| Country | Italy |
| Court | Italy, Corte di Cassazione (Supreme Court) |
| Date | 16 June 2011 |
| Parties | Del Medico & C. SAS v. Iberprotein Sl |
| Case number | 13231 |
| Applicable NYC Provisions | V | II |
| Languages | English |
| Summary | A Spanish company (Iberprotein) and an Italian company (Del Medico) entered into an agreement by executing a standard form contract of the Grain and Feed Trade Association (GAFTA). The agreement referred to the general terms and conditions, which contained an arbitration clause. A dispute arose and an award was rendered in London on 4 April 2002 in favor of Iberprotein. By an ex parte order (decreto) issued on 17 September 2002, the President of the Corte di Appello di Bari (Bari Court of Appeal) allowed enforcement of the award in Italy. Del Medico filed a petition against the enforcement order under Article 840 of the Italian Code of Civil Procedure (opposizione) before the Corte di Apello di Bari, which was dismissed. It then applied to the Corte Suprema di Cassazione (Supreme Court), claiming that the award had been rendered on the basis of an invalid arbitration agreement. Del Medico argued that the arbitration agreement had not been expressly approved by the parties, and that the mere reference in the agreement to the general terms and conditions containing the arbitration clause did not comply with the requirement of Article II NYC that the arbitration agreement should be concluded in writing. Del Medico further alleged that the reasoning of the Corte di Appello di Bari was insufficient and contradictory in that the Court maintained, on the one hand, that the arbitration agreement was valid since arbitration agreements incorporated by reference were valid under English law, which was applicable as the law of the seat of the arbitration under Article V NYC, while noting, on the other hand, that Del Medico’s defense was grounded on the lack of knowledge of the arbitration agreement. The Corte Suprema di Cassazione affirmed the decision of the Corte di Appello di Bari and dismissed the petition against the enforcement order. It first noted that the principles set forth in Article 833 of the Italian Code of Civil Procedure (pursuant to which an arbitration clause contained in the general conditions incorporated into a written agreement between the parties is valid, provided that the parties had knowledge of the clause or should have had such knowledge by using ordinary diligence) may also be inferred from a correct reading of the NYC. It observed that such a provision is the result of an evolution aimed at overcoming formalistic difficulties in international arbitration, in compliance with Article II NYC. The Corte Suprema di Cassazione held that the definition of an “agreement in writing” under Article II NYC is broad enough to encompass an arbitration agreement entered into “per relationem imperfectam”, i.e. via a generic reference in the agreement to the arbitration clause included in the GAFTA general terms and conditions. After noting that the opposing party had not claimed that it was unaware of the GAFTA rules, it held that in its capacity of professional businessman in the field at hand, Del Medico could not pretend to have been ignorant to the GAFTA rules. The Corte Suprema di Cassazione also noted that Del Medico had failed to properly challenge the finding of the lower court and of the arbitral tribunal that English law applied to the issue of whether the arbitration agreement had been validly approved by the parties, as the law governing the main contract. While noting that Del Medico had failed to contradict this ruling, the Corte Suprema di Cassazione recalled that the arbitration agreement is autonomous and that Article V NYC provides that enforcement may be refused where the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. The Corte Suprema di Cassazione finally dismissed Del Medico’s argument that the reasoning of the lower court was contradictory. |
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Attachment (1)
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