Italy / 17 April 2003 / Italy, Corte di Cassazione (Supreme Court) / Lanificio Mario Zegna SpA v. Ermenegildo Zegna Corporation & Lanificio Ermenegildo Zegna SpA / 6164
| Country | Italy |
| Court | Italy, Corte di Cassazione (Supreme Court) |
| Date | 17 April 2003 |
| Parties | Lanificio Mario Zegna SpA v. Ermenegildo Zegna Corporation & Lanificio Ermenegildo Zegna SpA |
| Case number | 6164 |
| Languages | English |
| Summary | A dispute arose between an Italian company (“Lanificio Mario Zegna”), on the one hand, and an American company and its Italian parent company (“Ermenegildo Zegna Corporation” and “Lanificio Ermenegildo Zegna” respectively, collectively referred to as “Ermenegildo Zegna”), on the other hand, concerning the termination of an agreement for use of the Zegna trademark. The dispute was referred to the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris and an award was rendered in Paris on 16 February 1999 in favour of Ermenegildo Zegna. Ermenegildo Zegna obtained an enforcement order (decreto) for the award from the President of the Corte di Appello di Torino (Torino Court of Appeal). Lanificio Mario Zegna brought two actions before the Corte di Appello di Torino seeking (i) a declaration that the award was not enforceable in Italy and (ii) a declaration of the inefficacy of the execution order issued following the decreto of the President of the Corte di Appello di Torino. The two actions were joined and the Corte di Appello di Torino dismissed Lanificio Mario Zegna’s claim for a preventive declaration that a foreign award is not enforceable in Italy (accertamento negativo) as being inadmissible, since such a remedy is not “comparable” to the regime of the proceedings to challenge enforcement of the foreign award under Article 840 of the Italian Code of Civil Procedure (opposizione). Lanificio Mario Zegna appealed the decision based on Articles 156 and 159 of the Italian Code of Civil Procedure, arguing that its petition for a negative ascertainment should, by virtue of the principle of the conversion of juridical acts (principio della conversione degli atti giuridici), have been admitted as being equivalent to a petition against enforcement under Article 840 of the Italian Code of Civil Procedure (opposizione). The Corte Suprema di Cassazione (Supreme Court) affirmed the lower court's decision and dismissed the negative ascertainment action. It held that the admissibility of a negative ascertainment action as an atypical means of preventive protection is limited by the existence of a specific and typical instrument of protection, whose legal requirements would be circumvented by the atypical preventive claim. The Corte Suprema di Cassazione therefore approved the lower court’s ruling that Lanificio Mario Zegna’s claim for a preventive declaration of non-enforceability was inadmissible as such negative ascertainment action would have prevented Ermenegildo Zegna from availing itself of the protection of the typical proceedings against enforcement provided by Article 840 of the Italian Code of Civil Procedure (which wording is equivalent to Article V NYC). The Corte Suprema di Cassazione further dismissed Lanificio Mario Zegna’s argument that its petition for a negative ascertainment of enforceability should, by virtue of the principle of the conversion of juridical acts, have been treated as a petition against enforcement of the award under Article 840 of the Italian Code of Civil Procedure (opposizione). The Corte Suprema di Cassazione noted in this respect that conversion is possible only where the invalid action contains all the formal and material elements of the other action. The Corte Suprema di Cassazione approved the lower court’s finding that Lanificio Mario Zegna's request for a declaration of non-enforceability did not meet the conditions for conversion as it sought to produce the same effects as the opposition proceedings without establishing that the requirements for such proceedings were met. |
Attachment (1)
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