## Facts

- Haupl (plaintiff/award creditor) and Abati (defendant/award debtor) entered into a contract containing an arbitration clause.
- A dispute arose and was referred to an arbitral tribunal seated in Vienna, Austria.
- On August 11, 1981, Abati received a summons to appear before the Vienna tribunal.
- The tribunal scheduled Abati’s appearance for September 8, 1981.
- The Vienna tribunal rendered an arbitral award in favor of Haupl and against Abati.
- Haupl sought recognition and enforcement of the foreign arbitral award in Italy.
- Abati opposed recognition/enforcement, arguing that the notice period between August 11 and September 8 was insufficient.
- Abati specifically argued that the notice was inadequate because businesses in its home country typically concentrate vacations in August, making it difficult to prepare a defense and appear.
- The Milan Court of Appeal granted recognition/enforcement of the award, holding that the time between August 11 and September 8 was sufficient notice.
- Abati appealed to the Italian Supreme Court of Cassation, arguing that granting recognition violated Article V(1)(b) of the New York Convention (lack of proper notice or inability to present one’s case).

## Issues

1. Did the Italian courts err under Article V(1)(b) of the New York Convention by recognizing and enforcing a Vienna arbitral award where the resisting party received notice on August 11 for an appearance scheduled on September 8, and claimed August vacation practices made the notice insufficient?

## Decision

- The Italian Supreme Court of Cassation rejected Abati’s Article V(1)(b) objection and upheld the Milan Court of Appeal’s recognition/enforcement of the Vienna arbitral award.
- The court treated the August 11 to September 8 interval as adequate notice for purposes of Article V(1)(b).
- The court declined to accept customary August vacation practices, without more, as proof that Abati lacked a real opportunity to present its case.

## Legal Principles

- Under Article V(1)(b) of the New York Convention, refusal of recognition/enforcement requires proof that the resisting party lacked proper notice of the arbitration (or was otherwise unable to present its case).
- The burden of establishing an Article V(1)(b) defense rests on the party resisting enforcement.
- A court assessing Article V(1)(b) focuses on whether the party had a fair chance to participate, not whether scheduling was inconvenient.
- A notice period of roughly one month may satisfy Article V(1)(b), even if part of that period falls during a common vacation month, absent concrete proof of resulting inability to appear or present a defense.
- Recognition/enforcement proceedings are not a vehicle to revisit the merits of the award; review is limited to the Convention grounds invoked and proved.

## Conclusion

This case concerns enforcement in Italy of a Vienna-seated arbitral award in favor of Haupl against Abati. After the Milan Court of Appeal granted recognition, Abati argued to the Supreme Court of Cassation that the award should be refused under New York Convention Article V(1)(b) because notice served on August 11 for a September 8 appearance was allegedly inadequate given August vacation customs. The Supreme Court rejected the objection and upheld enforcement, treating the notice period as sufficient and finding that vacation practices, without specific proof of actual inability to participate, do not establish the Article V(1)(b) defense.


Judgment of 3 April 1987, XVII Y.B. Comm. Arb. 529 (1992)