In the matter of recognition of the efficacy of a foreign arbitral award, the production of the submission agreement, in the original or in a certified copy, together with the filing of the application, as required by art. 4 of the New York Convention of 10 June 1958 and art. 839 co. 2 cod. proc. civ., constitutes a procedural prerequisite, necessary for the valid commencement of the proceedings, which must be satisfied as a formal requirement of admissibility of the application at the time of the institution of the proceedings; this does not, however, preclude the documentary production from being supplemented, whether by direction of the court or on the initiative of a party, in the course of proceedings under art. 839 cod. proc. civ. in order to enable verification of the formal regularity of the award.
To international arbitration, which may be of a ritual nature only, arts. 817 and 819-ter cod. proc. civ. apply, with the consequence that the decision as to the lack of jurisdiction of the foreign arbitrator, once the arbitral proceedings have been commenced, cannot be referred to the national court, even if ordinary proceedings before the Italian judicial authority had been commenced earlier but no party to those proceedings had raised the question of jurisdiction in that forum, since the matter falls exclusively within the competence of the arbitrators themselves, and may be challenged only by the remedies provided for by law in connection with the recognition of foreign arbitral awards.
The ground for refusal of recognition and enforcement of a foreign arbitral award provided for by art. 840 co. 3 n. 2 cod. proc. civ., consisting in the impossibility of asserting one's defence in the arbitral proceedings, is not made out by the mere fact that a particular procedural provision in force in the foreign legal system was breached, it being necessary instead that the aforesaid impossibility of defence has in fact occurred; the determination of the actual adequacy of the means of communication used to enable the party to become aware of the arbitral proceedings in a timely manner constitutes a finding of fact not reviewable on a point of law if adequately reasoned.