## Facts

- An Italian company (Fratelli Damiano S.p.A.) and a German company (August Töpfer & Co.) concluded an international contract for the sale of sugar.
- The contract provided that disputes would be submitted to arbitration in London before the Arbitration Board of the Refined Sugar Association.
- A dispute arose and was arbitrated in London; an award was rendered in favor of Töpfer. The award did not set out reasons.
- Töpfer first sought recognition/enforcement of the London award in Italy. The Messina Court of Appeal initially granted enforcement, but that result was later overturned; after further proceedings, enforcement of the award was ultimately refused in Italy.
- While the Italian proceedings concerning enforcement of the award were still pending, Töpfer obtained an English High Court judgment confirming the enforceability of the same award.
- After the Italian courts had definitively refused enforcement of the award, Töpfer sought recognition/enforcement in Italy of the English High Court judgment.
- The Messina Court of Appeal granted exequatur of the English judgment, treating it as enforceable as a foreign court decision without examining its practical effect in light of the prior Italian refusal regarding the award.
- Damiano appealed to the Corte di Cassazione.

## Issues

1. Whether Italy may recognize and enforce an English court judgment confirming a foreign arbitral award when Italian courts have already finally refused enforcement of that award.
2. Whether the Italian court asked to grant exequatur of a foreign judgment may confine itself to a formal check when the judgment’s operative effect is to give force in Italy to an arbitral award previously denied enforcement.
3. Whether recognition of the English judgment must be refused because it conflicts with a final Italian determination between the same parties on the enforceability of the award, and would amount to indirect enforcement of what was already denied.

## Decision

- The Corte di Cassazione overturned the decision granting exequatur of the English High Court judgment.
- The Court refused recognition/enforcement of the English judgment in Italy, because granting exequatur would give effect—through the route of a judgment—to an arbitral award whose enforcement had already been definitively refused by Italian courts.
- The Court rejected the view that a confirming foreign judgment is enforceable in Italy on an automatic or merely formal basis where its effect is to circumvent the regime governing recognition/enforcement of foreign arbitral awards.

## Legal Principles

- Recognition/enforcement of a foreign judgment in Italy is subject to statutory conditions and is not granted solely because the decision is judicial in form; the court must verify that recognition does not conflict with fundamental requirements of the Italian legal order, including consistency with prior final Italian decisions between the same parties on the same matter.
- Where the foreign judgment is functionally and directly tied to a foreign arbitral award (because it confirms or declares enforceable that award), the Italian court may consider the judgment’s concrete effect, rather than treating it as unrelated to the award.
- A party may not obtain in Italy, by seeking exequatur of a foreign “confirming” judgment, the practical result of enforcing an arbitral award that has already been denied enforcement in Italy; such an attempt constitutes indirect enforcement and must be refused when it would negate the earlier Italian refusal.
- Italian courts should prevent the recognition of foreign judgments from being used to bypass the controls applicable to the recognition/enforcement of foreign arbitral awards, including where Italy has already issued a final refusal concerning the same award.

## Conclusion

The Corte di Cassazione refused exequatur of an English High Court judgment confirming a London arbitral award because Italian courts had already finally denied enforcement of that award, and recognition of the English judgment would have produced the same enforcement result in Italy and conflicted with the earlier final Italian outcome between the parties.


Fratelli Damiano S.p.A. v. August Töpfer & Co., Corte di Cassazione [Cass.] (It.), 17 Y.B. Com. Arb. 559 (1992).