Recognition and the declaration of enforceability of a foreign arbitral award presuppose that the applicant party produce a valid written arbitration agreement satisfying the requirements of Article II of the New York Convention of 10 June 1958, the burden of so proving lying upon the party seeking recognition and not upon the party contesting it.
The court hearing the opposition under art. 840 cod. proc. civ. retains full autonomy of review as to the existence and the validity of the arbitration agreement, being bound neither by the arbitrators’ decision nor by that of the courts of the State of the seat.
The arbitration clause, as an instrument bearing upon the waiver of State jurisdiction, requires written form ad substantiam and the unequivocal manifestation of the consent relating to it; the binding effect of an arbitration agreement contained in the standard terms of a structurally unilateral instrument therefore presupposes the written and informed acceptance of the other party.
A document bearing an illegible signature which cannot be traced to an identified person vested with the powers necessary to conclude a clause derogating from jurisdiction does not amount to the written manifestation, certain and attributable with certainty to the person so empowered, required ad substantiam for the valid conclusion of an arbitration clause.
The status of distributor does not make its holder the agent of the principal for the conclusion of contracts in the latter’s name and does not confer upon him the power to bind the principal to a clause derogating from jurisdiction in favour of a foreign arbitration, such power requiring a specific grant.
In the absence of the parties’ consent to refer the dispute to arbitrators, the arbitration agreement must be held invalid, with the consequent existence of the ground precluding recognition laid down by art. 840, co. 3, n. 1, cod. proc. civ.
Recognition of a foreign award may be refused, under art. 840, co. 3, n. 2, cod. proc. civ. read with Article V, co. 1, lett. b), of the New York Convention, where the proper constitution of the adversarial process in the arbitral proceedings is not proved, in particular where a communication addressed to the party was returned to the sender without the failure of delivery being subsequently cured in a documentarily verifiable manner.
The impairment of the adversarial process in arbitral proceedings is relevant not as a merely formal defect, but in so far as it affects the effectiveness of the right of defence, depriving the party of any concrete opportunity to answer the claims and the evidence offered by the opposing party.
The invalidity of the arbitration agreement, which concerns the very existence of the arbitrators’ authority, and the defect in the constitution of the adversarial process, which concerns the regularity of the proceedings, operate on distinct and independent levels, each being of itself sufficient to ground the refusal of recognition of the foreign award.