Italy / 15 June 2000 / Italy, Corte di Cassazione (Supreme Court) / Generalscavi srl v. Voest Alpine Bergtecnik GmbH / 8163
| Country | Italy |
| Court | Italy, Corte di Cassazione (Supreme Court) |
| Date | 15 June 2000 |
| Parties | Generalscavi srl v. Voest Alpine Bergtecnik GmbH |
| Case number | 8163 |
| Applicable NYC Provisions | IV | V |
| Languages | English |
| Summary | An Italian company (Generalscavi) entered into a contract with an Austrian company (Voest Alpine Zeltweg) for renting equipment, which contained an arbitration clause providing for arbitration under the auspices of the International Chamber of Commerce (ICC). A dispute arose and Voest Alpine Zeltweg's successor, Voest Alpine Bergtecnik (“Voest”), initiated arbitration proceeding against Generalscavi. An award was rendered in Vienna by a sole arbitrator in favor of Voest. Generalscavi brought an action before the Austrian courts to set aside the award. However, as Voest stated that it intended to seek enforcement of the award in Italy, Generalscavi brought an action before the Corte di Appello di Trieste (Trieste Court of Appeal), seeking a declaration that the requirements for enforcement of the foreign award in Italy were not met under the NYC because (i) there was a dispute as to the existence of the arbitration agreement, (ii) proceedings to set aside the award were pending in Austria, (iii) the time-limit for rendering the award had not been followed, and (iv) the tribunal had breached due process. The Corte di Appello di Trieste dismissed the application, holding that such an action for a “negative ascertainment” (azione di accertamento negativo) was inadmissible as it aimed at preventing the other party from using the procedural instruments provided by Articles 839 and 840 of the Italian Code of Civil Procedure. It further held that the grounds to refuse enforcement under Article 840 of the Italian Code of Civil Procedure were not met in the instant case since (i) Voest had validly succeeded Voest Alpine Zeltweg and was therefore a party to the arbitration agreement, (ii) the pending proceedings to set aside the award in Austria could only justify the suspension of the enforcement proceedings under Article 840, (iii) Generalscavi had had full opportunity to present its case in five submissions and the arbitrator had given reasons for dismissing Generalscavi’s claims and evidence, (iv) Generalscavi had failed to object in a timely manner that the award had been rendered after the six-month time limit, and (v) there was no violation of due process rights or of any other principles of public policy. Generalscavi appealed this decision before the Corte Suprema di Cassazione (Supreme Court). Generalscavi argued that the Corte di Appello di Trieste had erred in applying Articles 839 and 840 of the Italian Code of Civil Procedure in dismissing its negative ascertainment action, as Generalscavi had had an interest to act in view of Voest’s intention to seek enforcement of the award in Italy notwithstanding the pending proceedings in Austria for setting aside the award. It further challenged the finding of the Corte di Appello di Trieste that the grounds for refusing enforcement of the award in Italy had not been met. The Corte Suprema di Cassazione dismissed the appeal and affirmed the lower court's ruling that Generalscavi's negative ascertainment action was inadmissible. It held that the Italian legal order sets limits to the admissibility of actions for negative ascertainment as a general and atypical instrument of preventive protection. It noted that one such limit exists where, in respect of a certain subject matter and interest, (i) there is a specific and typical means of protection that is subject to certain pre-requisites and conditions, and (ii) the preventive atypical protection would result in disregarding the specific legal requirements of the typical action. The Corte Suprema concluded that, in the case at hand, the preventive declaration of non-enforceability was not admissible as it would prevent the other party from resorting to the enforcement procedure of Articles 839 and 840 of the Italian Civil Code (the wordings of which are equivalent to Articles IV and V NYC). The Corte di Cassazione added that this conclusion defeated all other grounds of appeal based on the inexistence of an arbitration agreement with Voest, i.e. the setting aside proceedings pending in Austria, the time-limit for the rendering of the award, and lack of due process. |
Attachment (1)
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