Italy / 10 March 2000 / Italy, Corte di Cassazione (Supreme Court) / Krauss Maffei Verfahrenstechnik GmbH et al. v. Bristol Myers Squibb S.p.A. / 58
| Country | Italy |
| Court | Italy, Corte di Cassazione (Supreme Court) |
| Date | 10 March 2000 |
| Parties | Krauss Maffei Verfahrenstechnik GmbH et al. v. Bristol Myers Squibb S.p.A. |
| Case number | 58 |
| Applicable NYC Provisions | V | II |
| Languages | English |
| Summary | A contract for the supply of two industrial machines for the treatment of chemicals products was entered into between an Italian company, Bristol Myers Squibb, and a German company, Krauss Maffei Verfahrenstechnik, acting on behalf of its German affiliate, Krauss Maffei (both German companies collectively referred to as “Krauss”), through the exchange of an offer and a confirmation order. Krauss' offer provided that German law would be applicable and that disputes would be submitted to arbitration with the seat in Bern (Switzerland). However, Bristol Myers Squibb's confirmation order did not refer to these contractual provisions. Bristol Myers Squibb brought an action before the Tribunale di Latina (Latina First Instance Tribunal), claiming that the equipment installed by Krauss was defective and seeking termination of the contract, restitution of the price, and damages. Krauss objected that the Italian courts lacked jurisdiction, which, it argued, rightly lay with the German courts as the courts of the company’s domicile, based on Article 5.1 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“the Brussels Convention”). Alternatively, Krauss objected that the Italian courts lacked jurisdiction on the basis of the arbitration agreement contained in the contract offer, arguing that the arbitration agreement was valid since (i) under Article 6.2 of the European Convention on International Commercial Arbitration of 21 April 1961 (“the Geneva Convention”), domestic courts shall, in order to determine the law applicable to the arbitration agreement, refer to the law to which the parties have subjected it, (ii) while Article II NYC requires an arbitration agreement in writing, Article V NYC provides for a refusal of enforcement only where the arbitration agreement is not valid under the law to which the parties have subjected it, and (iii) under German law, which had been chosen by the parties, arbitration agreements between professionals may be concluded tacitly (Article 1027 of the German Code of Civil Procedure). As permitted under the Italian Code of Civil Procedure, Krauss filed a petition before the Corte Suprema di Cassazione (Supreme Court) for a preliminary ruling on jurisdiction (regolamento preventivo di giurisdizione). The Corte Suprema di Cassazione rejected Krauss’ petition and held that the arbitration agreement was invalid. The Corte Suprema di Cassazione decided to examine first, following a logical order, the second motion for lack of jurisdiction, reasoning that the parties’ contractual agreement to submit their disputes to arbitration has priority over the domestic courts’ rules on jurisdiction. The Corte di Cassazione noted that under Article II NYC, Article 1.2 of the Geneva Convention, and the case law of the Italian courts, an arbitration clause is valid when it is contained in a document signed by both contracting parties or in an exchange of letters or telegrams. The Corte Suprema di Cassazione also referred to Italian court decisions requiring that the parties’ intention to refer disputes to arbitration, a derogation from the domestic courts’ ordinary jurisdiction, be expressed in a clear and unequivocal manner and that a restrictive interpretation of the arbitration agreement should be made in case of doubt as to the scope of the clause. The Corte Suprema di Cassazione held that an arbitration agreement contained only in the documents drawn up and signed by the seller, which does not appear and is not referred to in the document signed by the buyer, is not valid. The Corte di Cassazione concluded that the Italian courts had jurisdiction to hear the case in accordance with Article 5.1 of the Brussels Convention and dismissed the motion arguing for the jurisdiction of the German courts. |
| see also : |
Attachment (1)
 Original Language Adobe Acrobat PDF |
