984 F.2d 58 (2nd Cir. 1993), 402, Filanto, S.P.A. v. Chilewich Intern. Corp.

Docket Nº:402, Docket 92-7657.
Citation:984 F.2d 58
Party Name:FILANTO, S.P.A., Plaintiff-Appellant, v. CHILEWICH INTERNATIONAL CORP., Defendant-Appellee.
Case Date:January 19, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 58

984 F.2d 58 (2nd Cir. 1993)

FILANTO, S.P.A., Plaintiff-Appellant,

v.

CHILEWICH INTERNATIONAL CORP., Defendant-Appellee.

No. 402, Docket 92-7657.

United States Court of Appeals, Second Circuit

January 19, 1993

Argued Nov. 13, 1992.

Page 59

Richard N. Chassin, New York City (Joseph D. Becker, Michael J. Lane, Becker, Glynn, Melamed & Muffly, on the brief), for plaintiff-appellant.

Allen N. Ross, New York City (Lawrence J. Profeta, Warshaw Burstein Cohen Schlesinger & Kuh, on the brief), for defendant-appellee.

Before: NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal presents a variation on the recurring issue of whether a district court's order requiring arbitration is appealable. The precise question is whether such an order is appealable when it is entered in a lawsuit brought on the underlying dispute, the complaint is not dismissed, but the case is nonetheless marked "closed." The issue arises on the purported appeal of Filanto, S.p.A. ("Filanto") from the May 21, 1992, judgment of the District Court for the Southern District of New York (Charles L. Brieant, Chief Judge), 789 F.Supp. 1229 (S.D.N.Y.1992). We conclude that the appeal is premature, and accordingly dismiss the appeal.

Background

Defendant-appellee Chilewich International Corp. ("Chilewich") is a New York-based import-export company. In 1989, Chilewich contracted to sell footwear to Raznoexport, then a Soviet Government entity. This contract (the "Russian Contract") specified that all disputes would be resolved by arbitration before the Moscow Chamber of Commerce and Industry. To fulfill its obligations under the Russian Contract, Chilewich contracted with Filanto, the largest Italian manufacturer of shoes and boots. There is some dispute as to the content and time of formation of that contract. Chilewich contends that a March 13, 1990, letter it sent to Filanto contains the essential terms of the contract. This letter provided that the Russian Contract was "incorporated ... as far as practicable," and specifically indicated that any arbitration should be in accordance with that contract. Filanto contends that it never accepted these terms, and that a contract was formed only by conduct at a later date. Under applicable principles of international law, Filanto contends, such a contract would not include any arbitration provisions.

In January 1991, Chilewich refused to accept 90,000 boots, causing Filanto to incur a substantial loss. Filanto filed a breach of contract suit in the District Court for the...

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