Italy / 23 July 2009 / Italy, Corte di Cassazione (Supreme Court) / Nigi Agricoltura srl v. Inter Eltra Kommerz und Produktion GmbH / 17312
| Country | Italy |
| Court | Italy, Corte di Cassazione (Supreme Court) |
| Date | 23 July 2009 |
| Parties | Nigi Agricoltura srl v. Inter Eltra Kommerz und Produktion GmbH |
| Case number | 17312 |
| Applicable NYC Provisions | II | III | V | II(2) |
| Languages | English |
| Summary | A German company, Inter Eltra Kommerz und Produktion (“Inter Eltra”), entered into a contract for the sale and purchase of oil seeds with an Italian Company, Nigi Agricoltura srl (“Nigi”), through a confirmation order signed by Nigi’s broker that was sent to Inter Eltra’s broker. The order referred to the Federation of Oils, Seeds and Fats Associations (FOSFA) standard contract, which contained an arbitration clause. A dispute arose and Inter Eltra initiated arbitration against Nigi in London. Nigi failed to nominate an arbitrator due to which FOSFA appointed an arbitrator in Nigi’s place. The tribunal composed of two arbitrators rendered an award in favor of Inter Eltra, which then obtained an ex parte order of enforcement (decreto) for the award from the President of the Corte di Appello di Firenze (Florence Court of Appeal). Nigi filed a petition before the Corte di Appello di Firenze against the enforcement order under Article 840 of the Italian Code of Civil Procedure (opposizione). The Corte di Appello di Firenze held that the arbitration agreement was valid under Article 833 of the Italian Civil Code and Article II(2) NYC. It further dismissed Nigi’s allegation that the arbitral tribunal’s impartiality was affected by the even number of arbitrators, reasoning that Nigi’s argument was based on Article 809 of the Italian Code of Civil Procedure, which concerns only domestic arbitration and is irrelevant in the context of the enforcement of a foreign award, as it is not one of the grounds for refusal of enforcement provided by Article V NYC and Article 840 of the Italian Code of Civil procedure. Nigi appealed to the Corte Suprema di Cassazione (Supreme Court) on the grounds of the inexistence of the arbitration clause and of the arbitral tribunal’s lack of impartiality. Nigi first stated that no contract had been entered into between the parties because its broker would have refused to conclude the deal when it received the confirmation order of Inter Eltra’s broker, and because Inter Eltra’s broker was a third party with no mandate to accept its contractual offer. Nigi further argued that Article 809 of the Italian Code of Civil Procedure was applicable to the present case under Article III NYC (which provides for the application of the procedural rules of the place of enforcement of the award). The Corte Suprema di Cassazione affirmed the decision of the Corte di Appello di Firenze and dismissed Nigi’s petition against enforcement. The Corte Suprema di Cassazione refused to review Nigi’s factual allegations pertaining to the inexistence of an arbitration agreement between the parties, noting that the appeal was grounded on a document whose content was not even reproduced and whose relevance could not be reviewed in the proceedings on issues of law (giudizio di legittimità). It held that Nigi had failed to properly challenge the lower court’s finding that the defect related to the number of arbitrators is not a ground for refusal of enforcement under Article V NYC and Article 840 of the Italian Code of Civil procedure. The Corte Suprema di Cassazione noted that Nigi had only invoked Article III NYC, which concerns the proceedings for the enforcement of foreign awards and is manifestly irrelevant to issues pertaining to the arbitration proceedings itself or the composition of the arbitral tribunal, which were the issues invoked in this appeal. |
Attachment (1)
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