Summary
An English company, DHL GBS, and an Italian company, Finmatica, entered into an agreement (re software licencing, integration, servicing and maintenance). The agreement contained a London arbitration clause. The Italian company went into receivership. A claim was brought in Italy in respect of unpaid invoices. The Italian court rendered a judgment for the Italian company against the English company. The total sum awarded was about €1.3 million.
The Italian judgment was registered in England.
An appeal was made against a registration order, dated 30 September 2008. The English company made an application for the registration order to be set aside on the ground that the judgment was obtained in breach of arbitration agreement, and thus was outside of the scope of Brussels I. Alternatively, the judgment debtor submitted that the public policy defence must be triggered because the judgment was obtained in breach of arbitration agreement.
On 20th November 2008, the English company made an appeal to the Court of Appeal of Brescia, Italy.
On 2nd December 2008, the English company made an application for a stay of its own appeal pending the outcome of the appeal in the Italian proceedings. The application for a stay was dismissed by the English court. Mr Justice Tomlinson held that:
“23 In my judgment there is force in Mr Cloherty's submission that Finmatica should be allowed to know sooner rather than later whether the English court will afford recognition to a judgment of a court of a Member State obtained in breach of an arbitration provision. That formulation of itself of course begs a question. The point was discussed by Waller J in Phillip Alexander Securities and Futures Limited v. Bamberger and others [1997] I.L. Pr 73 at page 101, paragraph 114 of the judgment. Consideration may have to be given to the effect of section 32 of the Civil Jurisdiction and Judgments Act 1982 . Moreover I see no reason why, at any rate in the first instance, the court should need to reach its own conclusion on matters of Italian law, whether relating to the extent to which the Italian Bankruptcy Court enjoyed jurisdiction notwithstanding that the Judgments Regulation would or might not so have ascribed jurisdiction, or relating to the question whether the Bankruptcy Receiver was bound by the arbitration agreement contained in the contract on which he sued. In my judgment this question can be addressed firstly on the assumption that the Italian court was correct in its conclusions of Italian law. It may be that the answer given on this assumption will either obviate the necessity for or preclude further enquiry. To the extent that it does not, the court can then consider to what extent it is permitted to examine the substance of the conclusions of the Italian court as to its own jurisdiction and the non-applicability of the arbitration agreement. If the point arises, the court can consider whether the ambit of English public policy on these matters is or is not informed by the court's conclusion as to the correctness or otherwise of the Italian court's application of Italian law. In the event that the court's own conclusion as to the correctness of the Italian court's application of Italian law is held to be a permissible and relevant consideration, the court will be able to given further directions as to how and when the content of Italian law is to be determined.
24 For these reasons I conclude that, on the assumption that the court enjoys a discretion to stay DHL's appeal against the registration order, it would be inappropriate so to do. I need not therefore decide whether the court in fact has such a discretionary power. I will hear counsel on the directions, if any, which ought now to be made to facilitate expeditious disposal of the appeal.” [23-24]