The Milan Court of Appeal, with the ruling hereby commented (No. 3466 of November 4th 2022, Italian text available here), decide a challenge of an arbitral award (rendered at the end of an arbitration proceeding concerning a dispute on the leasing of a branch of business) accepting the objection of tardiness raised by the appealed party.
As to the facts, the appellant served the digital copy of the award received by certified e-mail from the Secretary of the Arbitral Tribunal, rather than a certified copy of the original decision itself. Precisely, the appealed party served a digital copy of the arbitral award stating that “the digital copy of the file named ‘Final Award.pdf’ is a true copy of the original digital document communicated by the Arbitral Tribunal though PEC1“.
The appellant notified its appeal beyond the short term of 90 days starting from the notification of the award, pursuant to Article 828(1) of the Code of Civil Procedure, hence the exception of inadmissibility of the appeal for lateness.
The appellant refers to the principle set forth in Article 824 of the Code of Civil Procedure, according to which: “Arbitrators shall draw up the award in one or more originals. The arbitrators shall give notice of the award to each party by delivery of an original or a certified copy by the arbitrators themselves, even by registered post, within ten days from the signing of the award“. In essence, the appellant contests the inadmissibility of the appeal, arguing that the notification made by the appealed party is null and void (or in any case invalid), because it concerns a not certified copy of the original award (and as such, according to the appellant, not eligible for the running of the short deadline provided by Article 828 of the Code of Civil Procedure).
In favour of the appellant’s argument, the Court of Cassation had established the following principle: “With regard to cassation appeals, the notification of the contested judgment made to the other party by PEC is suitable to start the short term of appeal against the addressee where the notifying party proves to have attached and produced the hard copy of the transmission message, the receipts of delivery and acceptance, the notification report and the certified copy of the judgment, unless the addressee of the notification does not contest its regularity in one or more aspects. (In this case, the Court of Cassation ruled out the lateness of the cassation appeal, raised by the appellant with reference to the first notification made by PEC, since the appellant had contested its regularity in relation to the extraction of the analogical copy and the notifying party had therefore proceeded with a second notification, with the consequent running of the time limit to appeal from the date of the latter)“. (Court of Cassation, Labour Section, 19 June 2019, no. 16421)
As a further support of the need for a correct certification of conformity, under penalty of nullity of the notification, is relevant also a ruling of the Court of Appeal of Rome: “For the purposes of the validity of the notification by pec the notifier must prepare a notification report drawn up, as required by Article 3-bis Law no 53/1994, on a separate digital document, signed with a digital signature and attached to the certified e-mail message. This report must contain … the certificate of conformity referred to in the second paragraph of the same article, i.e. the certificate required in the event that the document to be served is on paper and a file containing a scanned image has been generated by the scanner itself. … The absence in the report of the attestation of conformity of the digital copy of the original paper from which it is taken is sanctioned by Article 11 of Law no. 53/1994 with the nullity of the notification” (Rome Court of Appeal, 25 November 2019, no.4197).
However, and rightly so, the Court of Appeal of Milan avoids excessively formalistic approaches when, as in the case at hand, the “legal knowledge of the award acquired by the contesting party as a result of the other party’s notification activity aimed at provoking the appeal” is not at issue.
In fact, the Court of Appeal of Milan endorses the Supreme Court’s case law on the subject of the service of judgments according to which: “To the rule according to which the service of the judgment does not admit any equivalents, for the purposes of article 326 of the Code of Civil Procedure, however, an exception is made in one case: when the party has not only acquired legal – and not mere factual – knowledge of the judgment, but has acquired it by an act intended only to cause the appeal, or to challenge it (like Sez. 6 – 3, Order no. 1539 December 2nd 2012, Rv. 621568, in reasoning; as well as, more explicitly, Sez. 3, Judgement no. 5793 of March 8th 2017)” (see Court of Cassation, 26 February 2019, No. 5495
Not only. The Court of Appeal of Milan goes further by noting that even if there was a defect in the appealed party’s service activity, because the scanned copy of the original hard copy was not served (but rather the digital copy received by the Secretary of the Arbitral Tribunal was served), such defect would not be considered capable of invalidating the service for the purposes of the running of the short term of appeal.
In this sense, the Court of Appeal of Milan adheres to (and expressly refers to) the principle expressed by the Supreme Court of Cassation case law according to which “The absence, in the copy of the notified judgment, of the certificate of conformity with the original, issued by the Registrar, does not affect the validity of the service, given the limited nature of the cases of nullity provided for by article 160 of the Code of Civil Procedure, and does not entail its ability to start the short time limit for appeal, unless the addressee of the notification complains about the incompleteness of the copy received or the discrepancy between that copy and the original. (In the present case, the Court of Cassation held that the service of the copy of the contested decision, which in turn had been received by the notifying party from the clerk’s office in performance of the obligation imposed by Article 133 of the Code of Civil Procedure made by certified email by the notifying party’s attorney was able to start the short time limit term of appeal and there was no dispute as to its correspondence to the original)” (Court of Cassation, 29 March 2022, no. 10138).
On this point it also seems pertinent the judgement no. 28818 of November 8th 2019 of the Court of Cassation, according to which: “Any irregularity of the notifications by PEC is relevant if it concretely relates to the infringement of the counterparty’s right of defence, and to a specific complaint by the latter on the consequences of such irregularity; according to the principle of fairness and loyal cooperation, if not of self-responsibility of both parties, irregularities in relation to which the party concerned has not deduced, and if appropriate proved, the specific prejudice suffered are not relevant. (In this case, the lack of certification of conformity of the copy of the notified judgment, in relation to the commencement of the short time limit for appeal, was excluded).“.
In the same sense, other jurisprudence of merit has also recently expressed itself:.
“The notification by certified email of the judgment, even if lacking of the certificate of conformity with the original of the decision extracted from the electronic file, is suitable to start the short deadline to appeal if the addressee does not prove that the irregularity of the notification has impaired his right of defence (for example, due to the incompleteness of the copy, or non-conformity with the original), not being sufficient the generic deduction of the non-conformity or irregularity of the notification itself.“ (Florence Court of Appeal, 29 September 2021, no. 1828).
“The notification of the judgement made by certified email is suitable to start the short term of appeal against the addressee if the notifying party encloses and produces the copy of the transmission message by certified electronic mail, the receipts of delivery and acceptance, the notification report digitally signed by the lawyer, as well as the notified document. It should also be pointed out that even electronic notification of the judgment by means of a digital copy without regular certification of conformity with the original is capable of triggering the short time limit for appeal.” (Catania Court of Appeal, 10 February 2022, no. 276).
In conclusion, by adhering to such case law, the Court of Appeal of Milan confirms that, also with respect to the service of arbitral awards, any lack of certification of conformity with the original (and a fortiori any irregularity thereof) does not invalidate the service nor prevent the running of short time limit for appeal if it is ascertained in court that the copy of the award served is indeed a true copy of the original.