Italy / 19 May 2009 / Italy, Corte di Cassazione (Supreme Court) / Louis Dreyfus S.p.A. v. Cereal Mangimi S.r.l. / 11529
| Country | Italy |
| Court | Italy, Corte di Cassazione (Supreme Court) |
| Date | 19 May 2009 |
| Parties | Louis Dreyfus S.p.A. v. Cereal Mangimi S.r.l. |
| Case number | 11529 |
| Applicable NYC Provisions | II |
| Languages | English |
| Summary | Two Italian companies, Louis Dreyfus and Cereal Mangimi, entered into a sales contract, which referred to the general conditions of the Paris Grain Trade Association (INCOGRAIN) form no. 12, providing for arbitration before the Paris Arbitration Chamber. A dispute arose and Cereal Mangimi launched a lawsuit against Louis Dreyfus before the Tribunale di Bari (Bari First Instance Court). Louis Dreyfus raised a motion for lack of jurisdiction, based on the existence of an arbitration agreement. Both the Tribunale di Bari and the Corte di Appello di Bari (Bari Court of Appeal) held that the arbitration agreement was invalid since it was contained in a contract which had been executed by an agent whose mandate had been granted orally, in breach of Article 1392 of the Italian Civil Code, which provides that the mandate must have the same form as the main contract entered into by the agent. Louis Dreyfus appealed the decision by arguing that the arbitration agreement was valid given that an arbitration agreement is not required to be in writing ad substantiam, as a validity requirement, but only ad probationem, for an evidential purpose. The Corte Suprema di Cassazione (Supreme Court) affirmed the decision of the Corte di Apppello di Bari and rejected Louis Dreyfus’ motion for lack of jurisdiction. The Court noted that the issue of whether or not the agent needed a written mandate to conclude an arbitration agreement would most likely be of no relevance under the new wording of Article 808 of the Italian Code of Civil Procedure, resulting from the Italian arbitration law reform of 1994, which provides that the authority to enter into a contract includes the authority to enter into the arbitration clause. The Corte Suprema di Cassazione, however, avoided ruling on this issue and reached a conclusion based on different grounds, holding that the generic reference in the contract to the INCOGRAIN form did not satisfy the NYC requirement that an agreement in writing must be concluded between the parties to submit their disputes to arbitration, as per Article II NYC and Article 808 of the Italian Civil Code of Procedure. It distinguished between contracts containing an express and specific reference to an arbitration agreement contained in a separate document (per relationem perfecta), which it found were valid, and contracts containing a general reference to a separate document containing an arbitration agreement (per relationem imperfecta), which it found were not valid. The Corte di Cassazione therefore concluded that the Italian courts had jurisdiction to hear the case. |
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Attachment (1)
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