DHL GBS (UK) LTD V FALLIMENTO FINMATICA SPA

[2009] EWHC 291 (Comm), Queen’s Bench Division, Commercial Court, Mr Justice Tomlinson, 20 February 2009

Foreign judgment – Judgment given in Italy in alleged breach of arbitration clause – Enforcement of judgment – Appeal against enforcement in England – Application to stay English appeal pending appeal being heard in Italy – European Council Regulation (EC) No 44/2001 (Brussels Regulation), articles 1(2)(d), 34, 35 and 46 – Civil Procedure Rules, Part 74

DHL (an English company) and Finmatica (an Italian company) entered into an agreement for the provision by Finmatica of software services to DHL. The agreement provided for arbitration in England. Finmatica became insolvent and its Bankruptcy Receiver commenced proceedings in Italy for the recovery of sums allegedly due under unpaid invoices. DHL did not appear. The Italian court ruled that it possessed jurisdiction, that the arbitration clause could not be enforced and that DHL was liable for €1.3 million, including interest and costs. Finmatica obtained registration of the judgment in England under CPR 74.3(2) following a without notice application. DHL appealed against registration on three grounds: (1) the judgment was not registrable under the Brussels Regulation because it contained an arbitration clause and thus fell within the “arbitration” exception in article 1(2)(d) of the Brussels Regulation; (2) if the agreement was registrable, enforcement ought to be refused for reasons of public policy, as provided for by article 34 of the Brussels Regulation; and (3) the court should stay the recognition proceedings, under article 46 of the Brussels Regulation, pending an appeal against the judgment in Italy. The evidence showed that that appeal would not be heard for at least two years whereas the English appeal would be resolved in a matter of months. Subsequently, DHL applied for a stay of its own appeal to the English courts.