## Facts

- A Panamanian company (Pando) and an Italian company (Filmo) entered a 1972 charter-party containing a London-seated arbitration clause.
- The clause contemplated two party-appointed arbitrators who would select a third; the decision of any two would be final and could be made a rule of court.
- Filmo allegedly defaulted on payments under the charter-party.
- Pando commenced London arbitration, appointed an arbitrator, and requested Filmo to appoint its arbitrator; Filmo refused.
- Relying on § 7 of the English Arbitration Act 1950, Pando proceeded with its appointee acting as sole arbitrator.
- The sole arbitrator issued an award in favor of Pando.
- Pando sought recognition and enforcement in Italy under the New York Convention.
- Filmo opposed enforcement, arguing (i) tribunal composition deviated from the parties’ clause (sole arbitrator vs. three), and (ii) unilateral appointment and resulting award violated Italian public policy due to alleged lack of impartiality.

## Issues

1. Whether enforcement could be refused under New York Convention Article V(1)(d) because the award was rendered by a sole arbitrator appointed after the respondent refused to appoint, despite a clause contemplating a three-member tribunal.
2. Whether enforcement could be refused under New York Convention Article V(2)(b) because the unilateral appointment mechanism allegedly rendered the tribunal partial and contrary to Italian public policy.

## Decision

- The Venice Court of Appeals granted recognition and enforcement of the London award.
- The court held that using § 7 of the English Arbitration Act 1950 to proceed with a sole arbitrator after Filmo’s refusal was compatible with the arbitration agreement for purposes of Article V(1)(d).
- The court rejected the public-policy objection under Article V(2)(b), finding no showing of actual bias or fundamental procedural unfairness.
- The court treated Filmo’s non-cooperation as insufficient to defeat enforcement where the appointment mechanism applied was authorized by the law of the seat.

## Legal Principles

- For Article V(1)(d), tribunal composition and procedure are assessed in light of the parties’ agreement as read together with the arbitration law of the seat when the seat’s law supplies default mechanisms for non-cooperation in appointments.
- A respondent cannot ordinarily rely on its own refusal to participate in arbitrator appointment to invalidate enforcement where the claimant used a seat-authorized default procedure.
- The public-policy defense in Article V(2)(b) is construed narrowly; unilateral appointment pursuant to a lawful statutory mechanism does not, without concrete proof, establish partiality or a denial of due process sufficient to bar enforcement.

## Conclusion

The court enforced a London arbitral award notwithstanding a sole-arbitrator procedure triggered by the respondent’s refusal to appoint, holding that seat-law default appointment mechanisms may supplement the parties’ clause under Article V(1)(d) and that unsupported allegations of bias do not meet the narrow public-policy exception in Article V(2)(b).


Pando v. Filmo, III Y.B. Com. Arb. 277 (Venice Ct. App. 1976)