In DHL GBS (UK) Ltd v Fallimento Finmatica Spa – Butterworths Law Direct 20.2.09 the Commercial Court gave its first decision on the issues dealt with by the ECJ in the Front Comor.
The Appellant, an English company, entered into an agreement with the Respondent, an Italian company. The agreement contained an English choice of law clause (cl 22c) and an arbitration clause (cl 22e). The latter clause provided: 'all disputes other than disputes in respect of which injunctive relief is sought ... arising in and about this agreement and the parties' respective rights and obligations hereunder are to be referred to arbitration in London...'.
The Respondent, in the person of its bankruptcy receiver, brought a claim against the Appellant before the Court of Brescia, Italy, in respect of unpaid invoices for services which were said to have been rendered under the agreement. The Italian court held (1) that it had jurisdiction to entertain the claim; (2) that the bankruptcy receiver was not bound by the arbitration clause; and (3) on the merits, the Respondent's claim was sound. Judgment was consequently given to the Respondent against the Appellant for a total sum of approximately €1.3m.
The Respondent then applied successfully to an English court for the registration of the Italian judgment under the provisions of the Judgments Regulation. On 18 November, the Appellant lodged an appeal against that decision and on 20 November it lodged an appeal against the decision of the Italian court. No determination had been made on either of the appeals when the Appellant applied for a stay of its appeal in the English court pending the resolution by the Court of Appeal of Brescia of the appeal to that court.
The application was refused. The Respondent was entitled to 'know sooner rather than later' whether an English court would be prepared to register, and thereupon, enforce the Italian judgment. The appropriate order would be to refuse the Appellant’s application for a stay, and for steps to be made, with directions as would be appropriate, to facilitate the expeditious disposal of the appeal against the master's order.