In proceedings for opposition to the recognition of a foreign arbitral award pursuant to Article 840 of the Code of Civil Procedure, defects relating to the constitution of the arbitral tribunal or to the arbitral proceedings, whilst constituting grounds for refusing recognition pursuant to Article 840(3)(4) of the Code of Civil Procedure, are relevant not by reason of the mere breach of a foreign procedural provision, but only where there has been a concrete impossibility for the party to present its defence in the proceedings.
A party which, during the foreign arbitral proceedings, has actively participated in the adversarial process without ever denouncing specific procedural defects such as the lack of impartiality of the arbitrators or the use of a language different from that contractually agreed, cannot subsequently raise such objections in proceedings for opposition to the recognition of the foreign award.
In proceedings for opposition to the recognition of a foreign arbitral award, the Italian court cannot review errors in iudicando committed by the arbitrators nor re-examine the merits of the decision, since such review is categorically excluded by the New York Convention of 1958, implemented by Articles 839 and 840 of the Code of Civil Procedure. The complaint relating to the rendering of the award not according to law, even though the parties had provided for such decisional criterion, does not fall within the exhaustive grounds for refusing recognition.
The failure to contest the arbitration clause during the foreign arbitral proceedings, together with the active participation of the party in the proceedings in both instances, precludes the subsequent assertion of the invalidity or ineffectiveness of the said clause in proceedings for opposition to the recognition of the foreign award.