The validity of an arbitration clause which derogates from Italian jurisdiction in favour of foreign arbitrators must be evaluated according to the law chosen by the parties to govern the contract, pursuant to Article V of the New York Convention and Article 840, paragraph 3, number 1, of the Code of Civil Procedure.
In opposition pursuant to Article 840 of the Code of Civil Procedure to the decree of recognition of a foreign arbitration award, observations on the validity of the arbitration clause must be expressed in relation to the provisions contained in the law applicable to the arbitration agreement, and cannot be evaluated if formulated exclusively with reference to Italian law when the latter is not applicable.
Article 840 of the Code of Civil Procedure contemplates scrutiny by the Court of Appeal on opposition to recognition of a foreign award solely in the hypothesis of invalidity of the arbitration agreement, and not in the hypothesis of non-existence tout court of the award, which must be raised in the appropriate forum by means of prior proceedings for ascertainment before the competent ordinary court.
Pursuant to Article II of the New York Convention, a written agreement may be considered subsistent when the parties have perfected the contract through exchange of communications incorporating general conditions containing an arbitration clause, by means of express reference to documents containing the arbitration clause.