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International Arbitration Forum

Paola Poli v. Elena Poli and Claudio Massimo

Case summary

At a glance

Parties
Paola Poli v. Elena Poli and Claudio Massimo (executor of the will)
Case no.
Corte di Cassazione, Sezioni Unite Civili, No. 18832/2019 (R.G. 11328/2017)
Court
Italy, Corte di Cassazione (Supreme Court), Joint Civil Sections; preliminary ruling on jurisdiction (regolamento preventivo di giurisdizione)
Forum and rules
Court proceeding about a clause providing for arbitration under the Swiss Rules of International Arbitration, seat Lugano, sole arbitrator
Treaty
New York Convention 1958, Articles II and II(3)
Court
Vincenzo Di Cerbo (presiding, Primo Presidente f.f.), Antonio Manna, Francesco Antonio Genovese, Andrea Scaldaferri, Luigi Alessandro Scarano, Fabrizia Garri, Alberto Giusti (rapporteur), Aldo Carrato, Antonietta Scrima
Sector
Family inheritance; trust; pharmaceutical group
Outcome
The Court held that Italian courts lack jurisdiction over claims 2, 3, 5 and 6 of Elena Poli's writ: claim 2 belongs to Swiss arbitration and claims 3, 5 and 6 to the Pretura of the district of Lugano. Costs were set off between the parties.
Amount
Claims in the Milan proceedings included at least EUR 13,520,000 (Euticals and related sales) and at least EUR 8,283,860.28 (Collina d'Oro-Montagnola property). The Court awarded no amount.

The dispute

Elena and Paola Poli are the sole heirs, in equal shares, of their father Stefano Poli, a figure in the pharmaceutical industry who died in 2009. During his life, on 15 May 2007, he settled The Pale Trust, governed by New Zealand law, and transferred the Poli Group to it. On 3 June 2013 the sisters and the trustee signed a Deed of Agreement, Indemnity, Release and Covenant not to sue. Under the Deed, Elena received EUR 81 million and Paola received Polilux Holding s.à r.l.; Article 15 of the Deed contains an arbitration clause (Swiss Rules, seat Lugano). On the same day the sisters signed a Swiss partial inheritance partition contract for property in Collina d'Oro-Montagnola, and Article 7 of that contract gave jurisdiction to the Pretura of the district of Lugano. In 2016 Elena sued Paola and the executor Claudio Massimo before the Tribunale di Milano. She sought an equal share of the proceeds from the sale of Poli Group companies, and annulment for fraud or rescission of the property partition. Paola objected to Italian jurisdiction on the basis of the arbitration clause and the Lugano forum clause, and asked the Corte di Cassazione for a preliminary ruling on jurisdiction.

Key holdings

  1. Claim 2, about the Poli Group companies, is not a succession matter. The Pale Trust was created inter vivos and is an indirect donation under Article 809 of the Civil Code. The trust assets were outside the settlor's estate when he died, and the daughters acquired them from the trustee, not by succession. ¶¶ 4–4.2.1
  2. In substance, claim 2 challenges whether the allocation under the Deed is binding and final. Italian jurisdiction would otherwise exist because the defendant lives in Italy (Article 3 of Law 218/1995). That jurisdiction is excluded by the arbitration clause in Article 15 of the Deed, which covers any dispute arising out of or in relation to the Deed. ¶¶ 5–5.1
  3. The arbitration clause is valid because it concerns disposable rights of a patrimonial nature (Article 4(2) of Law 218/1995, read with Article 806 of the Code of Civil Procedure and Article II of the New York Convention). Rights are non-disposable only where they are protected by mandatory norms whose breach the legal order reacts to without any party initiative. The presence of mandatory rules or overriding norms does not prevent submission to foreign arbitration. ¶ 6
  4. Under Article 16 of the Deed the English courts have non-exclusive jurisdiction, but this means only that they run alongside the High Court of New Zealand preserved by Article 17. Read together, Articles 15–17 create a closed system of three alternative forums. Swiss arbitration therefore fully excludes Italian jurisdiction over the Deed. ¶ 7.1.1
  5. The arbitration agreement is not null and void, inoperative or incapable of being performed under Article II(3) of the New York Convention. The Italian courts therefore lack jurisdiction over claim 2. ¶ 8
  6. Claims 3, 5 and 6 challenge the partition of the Swiss property and are succession matters. They would fall within Italian jurisdiction under Article 50(1)(a) of Law 218/1995 and the 1868 Italy–Switzerland Convention. However, the co-heirs validly removed them from Italian jurisdiction by Article 7 of the partial partition contract, which designates the Pretura of the district of Lugano. ¶¶ 9.1–9.2
  7. Because the issues were complex and novel, the costs of the jurisdiction proceeding were set off between the parties. ¶ 11; operative part

Procedural history

  1. 15 May 2007Stefano Poli settles The Pale Trust and transfers the Poli Group to it.
  2. 3 June 2013The sisters and the trustee sign the Deed, which contains the Swiss arbitration clause; the sisters also sign the partial partition contract in Lugano.
  3. 26 October 2016Elena Poli serves a writ before the Tribunale di Milano against Paola Poli and Claudio Massimo.
  4. 2 May 2017Paola Poli serves an application for a preliminary ruling on jurisdiction.
  5. 20 November 2018The Joint Sections declare the application admissible by order No. 29880.
  6. 3 July 2019The Court decides that Italian courts lack jurisdiction over claims 2, 3, 5 and 6; the order is filed as No. 18832 (database date 12 July 2019).

Tribunal, counsel and experts

Decided by
For the claimant
Bruno Carlo Cavallone · Alberto Nanni · Francesco Gianni · Emanuele Rimini · Antonio Auricchio
For the respondent
Cristina Rossello · Ettore Maria Negro

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Case ID
Corte di Cassazione (Supreme Court), No. 18832
Country
Claimant
Paola Poli
Respondent
Elena Poli and Claudio Massimo
Section

Court: Italy, Corte di Cassazione (Supreme Court)
Date of decision: 12 July 2019
Case number: 18832
New York Convention provisions: II | II(3)
Source: New York Convention case law case database.