Italy / 23 July 2009 / Italy, Corte di Cassazione (Supreme Court) / Microware s.r.l. in liquidation v. Indicia Diagnostics S.A / 17291
|Italy, Corte di Cassazione (Supreme Court)
|23 July 2009
|Microware s.r.l. in liquidation v. Indicia Diagnostics S.A
|Applicable NYC Provisions
|A French company (“Indicia Diagnostics”) and an Italian Company (“Microware”) entered into a contract for the supply of products, which contained an arbitration agreement. A dispute arose and Indicia Diagnostics initiated arbitration against Microware under the Rules of the International Chamber of Commerce (ICC). An award was rendered in Paris in favor of Indicia Diagnostics, for which its successor (“Indicia Biotechnology”) obtained an ex parte order (decreto) for recognition and enforcement in Italy from the President of the Corte di Appello di Venezia (Venice Court of Appeal). Microware filed a petition against the enforcement order as per Article 840 of the Italian Code of Civil Procedure (opposizione), arguing that part of the award’s order for payment concerned supplies that were extraneous to the parties’ contract and therefore not subject to the arbitration agreement. It further argued that enforcement should be denied because Indicia Biotechnology had failed to supply the original or a certified copy of the arbitration agreement when filing its enforcement application. The Corte di Appello di Venezia noted that although Indicia Biotechnology had supplied a certified copy of the contract containing the arbitration agreement, the signature on the certificate of authenticity was illegible and the capacity of the signatory was not indicated. It therefore granted Indicia Biotechnology a time limit to provide the original arbitration agreement or a duly certified copy thereof. Indicia Biotechnology complied with such a request and the Corte di Appello di Venezia partially confirmed the enforcement order, accepting Microware's challenge only in respect of the supplies that were not covered by the parties’ contract containing the arbitration agreement. Microware appealed the decision, arguing that the lower court had violated Article 839.2 of the Italian Code of Civil Procedure by disregarding the requirement that the arbitration agreement be produced at the time of the request for enforcement. The Corte Suprema di Cassazione (Supreme Court) reversed the lower court's decision and denied enforcement. It held that compliance with Article IV of the NYC (the wording of which is equivalent to Article 839.2 of the Italian Code of Civil Procedure and requires that the original arbitration agreement or its certified copy be produced at the time of filing of the enforcement request) is a condition for the admissibility of the enforcement proceedings and not just a matter of evidence. The Corte Suprema di Cassazione concluded that the supply of the original or of a certified copy of the arbitration agreement is a procedural prerequisite to be verified at the commencement of the proceedings and not a mere condition for the action, the absence of which may be cured in the course of the proceedings. However, the Corte Suprema di Cassazione noted that the lower court’s finding that the requirement of Article IV has not been met, did not preclude a new enforcement application for the same award.
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