Scandinavian Reins. Co. Ltd. v. St. Paul Fire & Marine Ins. Co.

Opinion

10-0910-cv Scandinavian Reins. Co. Ltd. v. St. Paul Fire & Marine Ins. Co.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Argued: January 28, 2011 Decided: February 3, 2012) 5 Docket No. 10-0910-cv 6 ------------------------------------- 7 SCANDINAVIAN REINSURANCE COMPANY LIMITED, 8 Petitioner-Appellee, 9 - v -

10 SAINT PAUL FIRE AND MARINE INSURANCE COMPANY; ST. PAUL 11 REINSURANCE COMPANY, LIMITED; ST. PAUL RE (BERMUDA) LIMITED,

12 Respondents-Appellants.

13 -------------------------------------

14 Before: SACK and LIVINGSTON, Circuit Judges, and MURTHA, 15 District Judge.*

16 Appeal from a decision of the United States District

17 Court for the Southern District of New York (Shira A. Scheindlin, 18 Judge) granting a petition to vacate an arbitral award under the 19 Federal Arbitration Act on the basis of "evident partiality." 9

20 U.S.C. § 10(a)(2). The district court concluded that vacatur was 21 warranted because two of the three members of the arbitral panel 22 failed to disclose their simultaneous service as arbitrators in 23 another proceeding in which a common witness, similar legal 24 issues, and a related party were involved. We conclude that

*

The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation.

1 there was insufficient evidence before the district court on 2 which to base a finding of "evident partiality." We therefore 3 reverse and remand with instructions to confirm the arbitral 4 award.

5 PATRICIA A. MILLETT, Akin Gump Strauss 6 Hauer & Feld LLP, Washington, D.C.; 7 Barry A. Chasnoff, Rick H. Rosenblum, 8 David R. Nelson, Akin Gump Strauss Hauer 9 & Feld LLP, San Antonio, TX; Michael C. 10 Small, L. Rachel Helyar, Akin Gump 11 Strauss Hauer & Feld LLP, Los Angeles, 12 CA, for Petitioner-Appellee.

13 G. ERIC BRUNSTAD, JR., Collin O'Connor 14 Udell, Matthew J. Delude, Joshua W.B. 15 Richards, Wayne I. Pollock, Dechert, 16 LLP, Hartford, CT; David M. Raim, 17 William K. Perry, Joy L. Langford, 18 Chadbourne & Parke LLP, Washington, 19 D.C.; John F. Finnegan, Chadbourne & 20 Parke LLP, New York, NY, for 21 Respondents-Appellants.

22 SACK, Circuit Judge: 23 The primary question presented on this appeal is

24 whether the failure of two arbitrators to disclose their 25 concurrent service as arbitrators in another, arguably similar, 26 arbitration constitutes "evident partiality" within the meaning 27 of the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 10(a)(2). 28 Respondents Saint Paul Fire and Marine Insurance Company; St. 29 Paul Reinsurance Company, Limited; and St. Paul Re Limited 30 (collectively, "St. Paul") appeal from a decision of the United 31 States District Court for the Southern District of New York 32 (Shira A. Scheindlin, Judge) granting a petition by Scandinavian 33 Reinsurance Company Limited ("Scandinavian") to vacate an 34 arbitral award rendered in St. Paul's favor and denying a cross-

3

1 petition by St. Paul to confirm the same award. St. Paul had 2 initiated the arbitration (the "St. Paul Arbitration") to resolve 3 a dispute concerning the interpretation of the parties' 4 reinsurance contract. 5 In deciding that vacatur was warranted on "evident 6 partiality" grounds, the district court relied principally on the 7 fact that two of the three members of the arbitral panel in the 8 St. Paul Arbitration -- Paul Dassenko and Peter Gentile -- had 9 failed to disclose that they were simultaneously serving as panel 10 members in another arbitration proceeding: the "Platinum 11 Arbitration." The court observed that the Platinum Arbitration 12 "overlapped in time, shared similar issues, involved related 13 parties, [and] included . . . a common witness." Scandinavian 14 Reins. Co. v. St. Paul Fire & Marine Ins. Co., 732 F. Supp. 2d 15 293, 307-08 (S.D.N.Y. 2010) ("Scandinavian") (footnotes omitted). 16 The district court determined that "these factors indicate that 17 Dassenko and Gentile's simultaneous service as arbitrators in 18 [both proceedings] constituted a material conflict of interest." 19 Id. at 308. The court then concluded that the arbitrators' 20 failure to disclose this conflict of interest required vacatur of 21 the arbitral award. 22 We disagree. Evident partiality may be found only 23 "'where a reasonable person would have to conclude that an 24 arbitrator was partial to one party to the arbitration.'" 25 Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve 26 Sanayi, A.S., 492 F.3d 132, 137 (2d Cir. 2007) (internal

4

1 quotation mark omitted) (quoting Morelite Constr. Corp. v. N.Y.C. 2 Dist. Council Carpenters Benefits Funds, 748 F.2d 79, 84 (2d Cir. 3 1984)). We conclude that, under the circumstances of this case, 4 the fact of Dassenko's and Gentile's overlapping service as 5 arbitrators in both the Platinum Arbitration and the St. Paul 6 Arbitration does not, in itself, suggest that they were 7 predisposed to rule in any particular way in the St. Paul 8 Arbitration. As a result, their failure to disclose that 9 concurrent service is not indicative of evident partiality. We 10 therefore reverse and remand with instructions to the district 11 court to confirm the award. 12 BACKGROUND 13 The facts are recited at length in the district court's 14 opinion, see Scandinavian, 732 F. Supp. 2d at 295-302, and we 15 borrow freely from that description here. The facts are 16 undisputed unless otherwise noted. 17 The Reinsurance Contracts 18 On August 21, 1999, Scandinavian and St. Paul -- both 19 reinsurance companies -- entered into a specialized type of 20 reinsurance contract known as a stop-loss retrocessional 21 agreement.1 See Retrocessional Casualty Aggregate Stop Loss

1

The district court explained:

Reinsurance is insurance for insurance companies[.]

[T]he ceding company transfers or "cedes" all or part of the risk it underwrites to the reinsurer -- another insurance company that is willing to assume that risk.

In a retrocessional agreement, a reinsurer cedes a portion of its risk to another reinsurer. A

5

1 Agreement AR 11914 (the "Agreement")). Under the Agreement, St. 2 Paul ceded to Scandinavian some of the reinsurance liabilities 3 that St. Paul had assumed from other insurance companies under 4 reinsurance business that had been, or would be, written by St. 5 Paul between January 1, 1999, and December 31, 2001. 6 In exchange for Scandinavian's assumption of these 7 liabilities, St. Paul became obligated to pay premiums to 8 Scandinavian. But the Agreement contemplated that instead of 9 paying the premiums to Scandinavian directly, St. Paul would 10 provisionally retain those funds within an "experience account,"2 11 where the funds would accumulate interest. Any amounts that 12 Scandinavian became obligated to pay St. Paul based on the 13 assumed liabilities would first be paid out of that account. 14 Only if the experience account became fully depleted would 15 Scandinavian have to pay St. Paul out of its own funds. 16 The Agreement contained a dispute-resolution clause 17 providing for binding arbitration of "any dispute arising out of 18 the interpretation, performance or breach of this Agreement, 19 including the formation or validity thereof." Agreement at 11.

retrocessional agreement is effectively reinsurance for reinsurance.

Scandinavian, 732 F. Supp. 2d at 295 n.2 (citation omitted); see generally Unigard Sec. Ins. Co. v. N. River Ins. Co., 4 F.3d 1049, 1053-54 (2d Cir. 1993) (describing the reinsurance business).

2

Although termed an "account," the experience account is a purely notional bookkeeping concept.

6

1 It required that such disputes be "submitted for decision to a 2 panel of three arbitrators" -- two party-appointed arbitrators 3 and an umpire -- all of whom would be "disinterested active or 4 former executive officers of insurance or reinsurance companies 5 or Underwriters at Lloyd's, London." Id. 6 Emergence of the Parties' Dispute 7 In January 2002, Scandinavian entered into "run-off,"3 8 thereby ceasing to underwrite new business. St. Paul also 9 entered into run-off later the same year. 10 After St. Paul requested that Scandinavian indemnify it 11 for much of its loss, two disputes emerged between the parties 12 concerning the Agreement's interpretation. First, the parties 13 could not agree on whether they had intended the Agreement to 14 limit the volume of liability assumed by Scandinavian. 15 Scandinavian argued that the parties had intended the Agreement 16 to be "finite," and that the maximum possible loss to 17 Scandinavian that the parties had contemplated was about $21 18 million.4 St. Paul contended, however, that the Agreement 19 contained no express limitation on the extent of risk that

3

According to the parties, a reinsurer is said to be in "run-off" status when it ceases to write new reinsurance contracts but continues to administer its existing obligations under previously issued contracts. It is essentially an "orderly wind-down" of the company's reinsurance business. Delta Holdings, Inc. v. Nat'l Distillers & Chem. Corp., 945 F.2d 1226, 1235 (2d Cir. 1991), cert. denied, 503 U.S. 985 (1992).

4

Scandinavian also contends that, conversely, the maximum possible gain to Scandinavian that the parties had contemplated was $3 million.

7

1 Scandinavian had assumed and that no such limitation should be 2 read into the Agreement. St. Paul ultimately sought to charge 3 Scandinavian with losses of approximately $290 million. 4 Second, the parties could not agree on whether the 5 Agreement provided for a single experience account, or instead 6 three separate experience accounts (i.e., one for each year 7 covered by the Agreement). Scandinavian argued that the 8 Agreement provided for one, while St. Paul argued that there were 9 three separate accounts. 10 The Arbitrators and Their Disclosures 11 To resolve these disputes, in September 2007, St. Paul 12 demanded arbitration. In accordance with the terms of the 13 Agreement, the parties proceeded to select the three members of 14 the arbitral panel. Scandinavian appointed Jonathan Rosen, and 15 St. Paul appointed Peter Gentile. Paul Dassenko was selected to 16 serve as umpire.5 The parties accepted Dassenko's appointment on 17 November 29, 2007, following their receipt of his responses to a 18 disclosure questionnaire.

5

The parties' descriptions regarding who was responsible for selecting Dassenko appear to be inconsistent. St. Paul states that each party proposed five possible candidates for umpire, and that Dassenko was jointly selected by the parties because he had been included on each party's list. Scandinavian states, instead, that the two party-appointed arbitrators, Rosen and Gentile, were the ones responsible for selecting Dassenko.

The district court, without noting this inconsistency, accepted Scandinavian's representation that "Rosen and Gentile selected Paul Dassenko to be the umpire." Scandinavian, 732 F. Supp. 2d at 296. There is no need to inquire further into this matter, however, because it does not affect the outcome on appeal.

8

1 Although the Agreement did not require the arbitrators 2 to be affiliated with any particular arbitral association, all 3 three arbitrators were certified by the AIDA Reinsurance and 4 Insurance Arbitration Society ("ARIAS"). ARIAS has promulgated 5 ethical guidelines for certified arbitrators, including Canon IV, 6 which instructs arbitrators to "disclose any interest or 7 relationship likely to affect their judgment" and to resolve any 8 doubt about whether to disclose "in favor of disclosure." ARIAS 9 U.S., Code of Conduct - Canon IV, 10 http://www.arias-us.org/index.cfm?a=30 (last visited Dec. 20, 11 2011). In accordance with those guidelines, each of the 12 arbitrators made initial disclosures to the parties. The form of 13 those disclosures differed.

14 Dassenko, the umpire, responded in writing to a nine- 15 page questionnaire jointly submitted by the parties.6 See [J.A.

16 112-30] Umpire Questionnaire (Nov. 21, 2007). In addition to 17 disclosing his past employment at several firms affiliated with

18 either St. Paul or Scandinavian,7 Dassenko noted that it was 19 "likely" that he had "transacted or sought to transact business

6

The questionnaire appears to have been modeled on a sample disclosure form prepared and disseminated by ARIAS. See ARIAS U.S., Arbitrators/Umpire Questionnaire, http://www.arias-us.org/forms/arias-arbitrator-umpire-disclosurequestionaire .doc (last visited Dec. 20, 2011).

7

The parties' questionnaire identified some fifty-eight entities within the "Travelers Group of Insurance Companies," to which St. Paul belongs, and some sixty-two entities within the "White Mountains Insurance Group Companies," to which Scandinavian belongs. See Umpire Questionnaire ¶ 6(A).

9

1 with most of the entities" listed by the parties on the 2 questionnaire, including St. Paul and Scandinavian themselves. 3 Id. ¶ 6(c). Dassenko represented, however, that he had never had 4 any involvement with the subject matter of the dispute, nor did 5 he have any significant professional or personal relationship 6 with any officers, directors, or employees of the parties.8 7 Dassenko also indicated that he had previously served as an 8 arbitrator in more than 150 insurance or reinsurance 9 arbitrations, including two arbitrations in which Rosen had also 10 been an arbitrator. At the prompting of St. Paul's counsel, 11 Dassenko made additional disclosures by email on November 27, 12 2007, with respect to certain matters that he had forgotten to

13 include in responding to the questionnaire. 14 The two party-appointed arbitrators made their initial

15 disclosures orally at an organizational meeting held on February 16 25, 2008. Both Rosen, the Scandinavian-appointed arbitrator, and 17 Gentile, the St. Paul-appointed arbitrator, made a variety of 18 disclosures about past and present employment, their 19 relationships to the parties or their law firms, and their 20 participation as witnesses or arbitrators in other proceedings

8

In the context of describing the umpire questionnaire, the district court noted that "Dassenko did not mention working with Gentile on any arbitration nor did he disclose any relationship with Platinum." Scandinavian, 732 F. Supp. 2d at 297. We note that it would have been impossible for Dassenko to have made those specific disclosures at that time, however, because the Platinum Arbitration did not begin until more than six months later.

10

1 involving the same parties, their affiliates, their law firms, or 2 the same arbitrators.9 3 After Rosen and Gentile made their respective 4 disclosures, Dassenko -- speaking on behalf of the panel -- 5 "urge[d] [the parties] to . . . determine whether there's 6 anything else that deserves more attention in terms of 7 disclosures on behalf of this [p]anel." Tr. at 15 (Feb. 25, 8 2008). Dassenko also acknowledged, on behalf of the panel, the 9 arbitrators' "ongoing responsibility" to make disclosure if and 10 when they "become aware of relationships or situations that 11 require additional disclosure." Id. The parties agreed to 12 accept the panel as constituted. They did not ask any other 13 questions relating to the arbitrators' disclosures at that time. 14 As the St. Paul Arbitration progressed, the arbitrators 15 made various additional disclosures. On July 18, 2008, Gentile 16 informed the parties that during the time he worked at a 17 specified firm, other staff members at that firm might have 18 reviewed the same contract that was at issue in the St. Paul 19 Arbitration. During a motion hearing held on May 2, 2009, he and 20 Rosen disclosed that they had known Scandinavian's expert witness 21 professionally and personally for many years. And on June 23, 22 2009, Gentile told the parties that he had met one of

9

For example, Gentile disclosed that he had previously appeared as a fact witness in an arbitration in which Dassenko was a party arbitrator and in which the opposing party was an affiliate of Scandinavian.

11

1 Scandinavian's witnesses, Bart Hedges, "a few times in the past, 2 mainly in Bermuda." Tr. at 1832 (June 23, 2009). 3 The umpire, Dassenko, made further disclosures on March 4 28, 2009; June 24, 2009; and July 1, 2009. For example, Dassenko 5 explained that his private equity firm had been retained to 6 assist with the run-off of an insurer that had a potential 7 dispute with St. Paul's parent company, and that he had prior 8 business contacts with a St. Paul underwriter whose name had been 9 mentioned during the evidentiary hearing. 10 The Arbitral Award 11 The arbitration proceedings addressed the question 12 whether the parties had agreed to limit Scandinavian's total 13 financial exposure under the Agreement. St. Paul argued that the 14 Agreement was valid and that its express terms -- which contained 15 no explicit limit -- should be enforced. Scandinavian sought 16 rescission of the Agreement on the grounds of misrepresentation, 17 or in the alternative, for rescission or reformation based on 18 unilateral or mutual mistake. 19 During the final evidentiary hearing, held between June 20 15, 2009, and July 1, 2009, fourteen witnesses testified. Among 21 them was Bart Hedges, who then served as president and CEO of 22 Scandinavian and who had been an employee of Scandinavian at the 23 time the Agreement was executed.

12

1 The arbitral panel issued their award (the "Award") on 2 August 19, 2009. A majority of the panel10 concluded that the 3 Agreement was valid and should be enforced according to its 4 terms, thereby exposing Scandinavian to an aggregate limit of 5 approximately $290 million in liability. With respect to several 6 other matters, including the question of whether the Agreement 7 had created one experience account or three, the panel ruled 8 unanimously in favor of St. Paul. 9 The Platinum Arbitration and its Non-Disclosure 10 While proceedings in the St. Paul Arbitration were 11 ongoing, another reinsurance arbitration -- the Platinum 12 Arbitration -- began. It involved a reinsurance dispute between 13 PMA Capital Insurance Company and several of its affiliates 14 (collectively, "PMA") and Platinum Underwriters Bermuda, Ltd. 15 ("Platinum"). Platinum was PMA's re-insurer. In June 2008 -- 16 about three months after the organizational meeting was held in 17 the St. Paul Arbitration -- Platinum demanded arbitration against 18 PMA in order to interpret a reinsurance contract between those 19 two parties. 20 Two of the arbitrators from the St. Paul Arbitration -- 21 Gentile, St. Paul's party-appointed arbitrator, and Dassenko, the 22 umpire -- were subsequently selected to serve on the panel in the

10

Scandinavian asserts, and St. Paul does not dispute, that this majority included Gentile and Dassenko but not Rosen.

Although the Award itself does not indicate which arbitrators joined in the holding, we, like the district court, see Scandinavian, 732 F. Supp. 2d at 299 n.43, have no reason not to accept that Dassenko and Gentile were in the majority.

13

1 Platinum Arbitration. Platinum selected Gentile as its party- 2 appointed arbitrator, and Dassenko, there too, was chosen to 3 serve as umpire. Those appointments occurred sometime between 4 early June and late September, 2008. The organizational meeting 5 for the Platinum Arbitration was held on September 23, 2008. The 6 evidentiary hearing was held in three one-day sessions in March 7 through May, 2009. The Platinum Arbitration ended with the 8 issuance of an award on May 22, 2009, about four weeks before the 9 start of the evidentiary hearing in the St. Paul Arbitration.11 10 The Platinum Arbitration was therefore concurrent with the St. 11 Paul Arbitration, as the St. Paul Arbitration began prior to, and 12 ended after, the Platinum Arbitration. 13 Despite the many disclosures made by Dassenko and 14 Gentile during the St. Paul Arbitration -- including disclosures 15 about the specific matter of their participation in other 16 arbitrations involving the same arbitrators -- it is undisputed 17 that neither Dassenko nor Gentile ever disclosed to the parties 18 the fact of their concurrent service in the Platinum Arbitration. 19 See Scandinavian, 732 F. Supp. 2d at 298. And although Dassenko

11

Following the award in the Platinum Arbitration, PMA filed a petition to vacate that award in the United States District Court for the Eastern District of Pennsylvania. The district court granted the petition on the grounds that the award was "completely irrational," insofar as the award purported to strike out part of the parties' contract without any authority for doing so. PMA Capital Ins. Co. v. Platinum Underwriters Bermuda, Ltd., 659 F. Supp. 2d 631, 636-39 (E.D. Pa. 2009). The district court's decision to vacate the award was upheld on appeal. See PMA Capital Ins. Co. v. Platinum Underwriters Bermuda, Ltd., 400 F. App'x 654 (3d Cir. 2010).

14

1 and Gentile each disclosed to Platinum and PMA that they were 2 then serving together as arbitrators in another matter -- the 3 arbitration at issue here -- neither of them specifically 4 identified St. Paul or Scandinavian as the parties involved in 5 it.12 Id. at 300.

6 Similarities Between the Platinum 7 Arbitration and the St. Paul Arbitration

8 As described by the district court, the Platinum 9 Arbitration appeared to resemble the St. Paul Arbitration in 10 several ways. 11 First, as noted above, Gentile served as the party- 12 appointed arbitrator for the claimant in both proceedings, and 13 Dassenko presided as umpire over each panel. See id. at 300. 14 Second, although St. Paul was not itself a party to the 15 Platinum Arbitration, St. Paul's business was related in several 16 ways to Platinum's. See id. at 301-02. Most importantly, after 17 St. Paul contributed its rights to renew its existing reinsurance 18 contracts to Platinum's parent in 2002, Platinum succeeded St. 19 Paul as PMA's reinsurer. Moreover, the core of Platinum's claim 20 in the Platinum Arbitration was that, in calculating the balance 21 of the "experience account" created by the Platinum-PMA contract, 22 Platinum was entitled to carry forward certain losses that had 23 been incurred by St. Paul under St. Paul's previous reinsurance

12

To the contrary, Gentile represented -- incorrectly -- to Platinum and PMA that the Platinum Arbitration was the first matter that he would serve on that would involve St. Paul in any way.

15

1 contract with PMA.13 See id. at 299; PMA Capital Ins. 659 F. 2 Supp. 2d at 639 (noting that the interpretation of the contract's 3 "Deficit Carry Forward Provision" was the "gravamen" of the 4 parties' dispute in the Platinum Arbitration). St. Paul asserts, 5 however, that the district court mischaracterized the facts and 6 that Platinum is not "truly related" to it in any meaningful way. 7 Appellants' Br. at 49. 8 Third, Hedges -- a past employee of both Scandinavian 9 and Platinum -- testified in both proceedings. See Scandinavian, 10 732 F. Supp. 2d at 306-07 & nn.112, 113. Hedges' testimony in 11 each proceeding related to two distinct periods of past 12 employment. Nonetheless, the district court posited that 13 Dassenko and Gentile could have concluded that Hedges testified 14 inconsistently -- and therefore lacked credibility -- insofar as, 15 in the Platinum Arbitration, Hedges testified in favor of 16 "interpreting the Platinum[-PMA] Agreement as written," while in

13

The district court also took note of two other, more indirect, connections between St. Paul and Platinum.

First, at the time of the Platinum Arbitration, a St. Paul affiliate known as "Travelers Special Services" was under contract with a Platinum affiliate to "administer claims and to provide actuarial and administrative services." Scandinavian, 732 F. Supp. 2d at 302 (internal quotation marks omitted). This arrangement was not at issue in the Platinum Arbitration.

Second, after the initial public offering of Platinum's parent holding company in 2002, some 180 employees left St. Paul for Platinum. Among them was one St. Paul employee who was centrally involved in negotiating the Agreement between St. Paul and Scandinavian, and who later served as a witness in the St.

Paul Arbitration. Id.

16

1 the St. Paul Arbitration, Hedges testified in favor of 2 "interpreting the Scandinavian[-St. Paul] Agreement in light of 3 Scandinavian[]'s intent at the time it entered into the 4 agreement." Id. at 308 (emphasis in original). St. Paul, for 5 its part, argues that "the involvement of Hedges as a witness in 6 the two unrelated arbitrations is . . . irrelevant." Appellants' 7 Br. at 51. 8 Fourth, the district court determined that the two 9 arbitrations "shared similar [legal] issues." Id. at 307.

10 [B]oth arbitrations required the arbitrators 11 to (1) consider whether a finite[14] 12 retrocessional agreement should be enforced 13 according to the express terms of the 14 agreement or whether the agreement should be 15 interpreted in light of the parties' 16 intentions at the formation of the agreement 17 and (2) interpret contract language regarding 18 the creation of experience accounts.

19 Id. at 307 n.118. Again, however, St. Paul criticizes the 20 district court's assessment of similarity, arguing that it is 21 couched at an "overly broad" level of generality. Appellants' 22 Br. at 50. 23 The District Court Proceedings

14

On appeal, Scandinavian persists in describing the Agreement as "finite," see Appellee's Br. at 4, 11, 39, and the district court described the Agreement using the same term, see Scandinavian, 732 F. Supp. 2d at 295, 307 n.118. It appears, however, that finiteness -- i.e., whether the "the amount of risk transferred from St. Paul to Scandinavian [] was limited," id. at 295 -- was the very matter that was disputed in the St. Paul Arbitration and which was ultimately resolved favorably to St.

Paul.

17

1 Scandinavian represents that it first became aware that 2 Dassenko and Gentile had served together on the Platinum 3 Arbitration two months after the Award was issued.15 On November 4 16, 2009, Scandinavian filed a petition to vacate the Award in 5 the United States District Court for the Southern District of New 6 York pursuant to the FAA on grounds of evident partiality. See 9 7 U.S.C. § 10(a)(2). Scandinavian asserted that the fact that 8 Dassenko and Gentile had failed to disclose their concurrent 9 service in the Platinum Arbitration -- a proceeding that, 10 Scandinavian contended, involved "a common witness, similar 11 disputed issues and contract terms, and the company that 12 succeeded to the business of St. Paul," Am. Pet. to Vacate 13 Arbitration Award at 2 (Dec. 21, 2009), at J.A. 202 -- reflected 14 bias by those arbitrators in St. Paul's favor. 15 On December 30, 2009, St. Paul opposed Scandinavian's 16 petition and filed a cross-petition to confirm the arbitration 17 award under 9 U.S.C. § 9. St. Paul did not dispute that Dassenko 18 and Gentile had failed to disclose their concurrent service in 19 the Platinum Arbitration, arguing instead that there was no basis 20 upon which to conclude that nondisclosure was indicative of bias. 21 On February 23, 2010, the district court granted 22 Scandinavian's petition and denied St. Paul's cross-petition, 23 concluding that the arbitrators' failure to disclose their

15

Scandinavian represents that it learned of the concurrent service after its counsel discovered the district court's decision vacating the award in the Platinum Arbitration.

18

1 concurrent service in the Platinum Arbitration constituted 2 evident partiality. See Scandinavian, 732 F. Supp. 2d at 307-09. 3 The court observed that the two arbitrations "were presided over 4 by two common arbitrators, overlapped in time, shared similar 5 issues, involved related parties, [and] included Hedges as a 6 common witness." Id. at 307-08 (footnotes omitted). The court 7 further reasoned:

8 By participating in both the [St. Paul] 9 Arbitration and the Platinum[] Arbitration, 10 Dassenko and Gentile placed themselves in a 11 position where they could receive ex parte 12 information about the kind of reinsurance 13 business at issue in the [St. Paul] 14 Arbitration, be influenced by recent 15 credibility determinations they made as a 16 result of Hedges's testimony in the 17 Platinum[] Arbitration, and influence each 18 other's thinking on issues relevant to the 19 [St. Paul] Arbitration. By failing to 20 disclose their participation in the 21 Platinum[] [A]rbitration, Dassenko and 22 Gentile deprived Scandinavian[] of an 23 opportunity to object to their service on 24 both arbitration panels and/or adjust their 25 arbitration strategy.

26 Id. at 308 (footnote omitted). 27 The court also contrasted Dassenko's and Gentile's 28 failure to disclose their concurrent service in the Platinum 29 Arbitration with the many "other less significant or temporally 30 remote relationships that Dassenko and Gentile considered 31 important enough to disclose," id. at 308-09, and suggested that 32 that comparison "strengthened" the court's conclusion that 33 Dassenko and Gentile should have informed the parties of their 34 simultaneous service, id.

19

1 The district court concluded that "[t]aken together, 2 these factors indicate that Dassenko and Gentile's simultaneous 3 service as arbitrators" in the two proceedings "constituted a 4 material conflict of interest." Id. at 308. And because that 5 conflict had not been disclosed, the court decided, the 6 nondisclosure met this Circuit's test for evident partiality. 7 Id. at 309 (citing Applied Industrial, 492 F.3d at 138). The 8 court vacated the Award and remanded the matter for arbitration 9 before a new arbitral panel. Id. 10 St. Paul appeals. 11 DISCUSSION 12 I. Review Of Arbitral Awards 13 A. Applicability of the New York Convention 14 The FAA does not "independently confer subject matter 15 jurisdiction on the federal courts." Durant, Nichols, Houston, 16 Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 63 (2d Cir. 17 2009). "[T]here must be an independent basis of jurisdiction 18 before a district court may entertain petitions" to confirm or 19 vacate an award under the FAA. Id. (internal quotation marks). 20 In this case, the district court had subject-matter jurisdiction 21 under 9 U.S.C. § 203, which provides federal jurisdiction over 22 actions to confirm or vacate an arbitral award that is governed 23 by the Convention on the Recognition and Enforcement of Foreign 24 Arbitral Awards (the "New York Convention"). The New York

20

1 Convention applies in this case because Scandinavian is a foreign 2 corporation. See 9 U.S.C. § 202. 3 Because the Award in the St. Paul Arbitration was 4 entered in the United States, however, the domestic provisions of 5 the FAA also apply, as is permitted by Articles V(1)(e) and V(2) 6 of the New York Convention. See Zeiler v. Deitsch, 500 F.3d 157, 7 164 (2d Cir. 2007) (describing overlap of New York Convention and 8 the FAA); Yusuf Ahmed Alghanim & Sons, W.L.L. v. Toys "R" Us, 9 Inc., 126 F.3d 15, 19-23 (2d Cir. 1997), cert. denied, 522 U.S. 10 1111 (1998). "[T]he FAA and the New York Convention work in 11 tandem, and they have overlapping coverage to the extent that 12 they do not conflict." Sole Resort, S.A. de C.V. v. Allure 13 Resorts Mgmt., LLC, 450 F.3d 100, 102 n.1 (2d Cir. 2006) 14 (internal quotation marks omitted). Neither party disputes that 15 section 10 of the FAA governs the issues before us on this 16 appeal. See 9 U.S.C. § 10. 17 B. Standards of Review 18 "When reviewing a district court's decision to vacate 19 an arbitration award, we review findings of fact for clear error 20 and questions of law de novo."16 Applied Industrial, 492 F.3d at 21 136; see also Zeiler, 500 F.3d at 164.

16

The parties dispute whether the appropriate standard of review for conclusions regarding mixed questions of law and fact is de novo or clear error in the context of petitions to vacate arbitration awards. Because we conclude that the result below rests on legal error, we need not reach this question.

21

1 A court reviewing an arbitration award under the FAA 2 "can confirm and/or vacate the award, either in whole or in 3 part." D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 4 2006). But a petition brought under the FAA is "not an occasion 5 for de novo review of an arbitral award." Wallace v. Buttar, 378 6 F.3d 182, 189 (2d Cir. 2004). A court's review of an arbitration 7 award is instead "severely limited," ReliaStar Life Ins. Co. of 8 N.Y. v. EMC Nat. Life Co., 564 F.3d 81, 85 (2d Cir. 2009), so as 9 not to frustrate the "twin goals of arbitration, namely, settling 10 disputes efficiently and avoiding long and expensive litigation," 11 Rich v. Spartis, 516 F.3d 75, 81 (2d Cir. 2008) (internal 12 quotation mark omitted). "This Court has repeatedly recognized 13 the strong deference appropriately due arbitral awards and the 14 arbitral process, and has limited its review of arbitration 15 awards in obeisance to that process." Porzig v. Dresdner, 16 Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 138 (2d Cir. 2007) 17 (citation omitted). Therefore, in order to obtain vacatur of the 18 decision of an arbitral panel under the FAA, a party "must clear 19 a high hurdle." Stolt-Nielson S.A. v. AnimalFeeds Int'l Corp., 20 130 S. Ct. 1758, 1767 (2010); see also Wallace, 378 F.3d at 189 21 (referring to the "heavy burden" on the party seeking vacatur 22 under the FAA). 23 II. Evident Partiality 24 A. Governing Law 25 The FAA provides that district courts may vacate an 26 arbitral award "where there was evident partiality or corruption

22

1 in the arbitrators, or either of them." 9 U.S.C. § 10(a)(2). In 2 this Circuit, "evident partiality within the meaning of 9 U.S.C. 3 § 10 will be found where a reasonable person would have to 4 conclude that an arbitrator was partial to one party to the 5 arbitration." Morelite, 748 F.2d at 84 (internal quotation marks 6 omitted). "Unlike a judge, who can be disqualified in any 7 proceeding in which his impartiality might reasonably be 8 questioned," Applied Industrial, 492 F.3d at 137 (emphasis and 9 internal quotation marks omitted), "an arbitrator is disqualified 10 only when a reasonable person, considering all the circumstances, 11 would have to conclude that an arbitrator was partial to one 12 side," id. (emphasis in original; internal quotation marks 13 omitted). Proof of actual bias is not required, however. See 14 United States v. Int'l Bhd. of Teamsters, 170 F.3d 136, 147 (2d 15 Cir. 1999). A conclusion of partiality can be inferred "from 16 objective facts inconsistent with impartiality." Pitta v. Hotel 17 Ass'n of N.Y.C., Inc., 806 F.2d 419, 423 n.2 (2d Cir. 1986). Of 18 course, a showing of evident partiality "may not be based simply 19 on speculation." Int'l Bhd. of Teamsters, 170 F.3d at 147; see 20 also Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 21 520, 530 (4th Cir. 2007) (noting that the "asserted bias" may not 22 be "remote, uncertain or speculative" (internal quotation marks 23 omitted)). 24 The burden of proving evident partiality "rests upon 25 the party asserting bias." Andros Compania Maritima, S.A. v. 26 Marc Rich & Co., A.G., 579 F.2d 691, 700 (2d Cir. 1978) (internal

23

1 quotation mark omitted). In inquiring whether that burden has 2 been satisfied, the court "'employ[s] a case-by-case approach in 3 preference to dogmatic rigidity.'" Lucent Techs. Inc. v. Tatung 4 Co., 379 F.3d 24, 28 (2d Cir. 2004) (quoting Andros Compania 5 Maritima, 579 F.2d at 700); accord Applied Industrial, 492 F.3d 6 at 137 (analysis takes into account "consider[ation of] all the 7 circumstances"). 8 Among the circumstances under which the evident- 9 partiality standard is likely to be met are those in which an 10 arbitrator fails to disclose a relationship or interest that is 11 strongly suggestive of bias in favor of one of the parties. See, 12 e.g., Applied Industrial, 492 F.3d at 136-39. But we have 13 repeatedly cautioned that we are not "quick to set aside the 14 results of an arbitration because of an arbitrator's alleged 15 failure to disclose information." Lucent Techs. Inc., 379 F.3d 16 at 28 (internal quotation mark omitted). We have concluded in 17 various factual settings that the evident-partiality standard was 18 not satisfied because the undisclosed relationship at issue was 19 "too insubstantial to warrant vacating the award." Id. at 30 20 (internal quotation mark omitted); see also, e.g., id. at 28-29 21 (no evident partiality where arbitrator failed to disclose either 22 his past work as an expert witness for one of the parties or his 23 past co-ownership of an airplane with another arbitrator); Andros 24 Compania Maritima, 579 F.2d at 696, 701-02 (no evident partiality 25 where umpire failed to disclose his past joint service on 26 nineteen arbitral panels with the president of a firm that acted

24

1 as one party's agent). Most recently, in Applied Industrial, we 2 considered the standard for obtaining vacatur based upon 3 nondisclosure. There, we reaffirmed the principle that where 4 "[a]n arbitrator . . . knows of a material relationship with a 5 party" but fails to disclose it, "[a] reasonable person would 6 have to conclude that [the] arbitrator who failed to disclose 7 under such circumstances was partial to one side." Applied 8 Industrial, 492 F.3d at 137; see also, e.g., Lucent Techs. Inc., 9 379 F.3d at 28 (recognizing same principle).17 10 B. Analysis 11 The district court in the case before us concluded that 12 Dassenko's and Gentile's simultaneous service in the Platinum

17

In Applied Industrial we observed that, up to that time (July 2007) we had not considered whether arbitrators possess a "duty to investigate or disclose potential conflicts of interest," that is, conflicts about which an arbitrator does not yet possess "actual knowledge." Id. at 138. Turning to that question, and relying upon Justice White's concurring opinion in Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145 (1968), we reasoned that "arbitrators must take steps to ensure that the parties are not misled into believing that no nontrivial conflict exists." Applied Industrial, 492 F.3d at 138.

Accordingly, we articulated a prophylactic rule applicable in circumstances in which an arbitrator thinks a nontrivial conflict may exist, but is not sure:

[W]here an arbitrator has reason to believe that a nontrivial conflict of interest might exist, he must (1) investigate the conflict (which may reveal information that must be disclosed under Commonwealth Coatings) or (2)

disclose his reasons for believing there might be a conflict and his intention not to investigate.

Id. We concluded that if an arbitrator fails to follow this rule by investigating or disclosing a potential nontrivial conflict of interest, such a failure "is indicative of evident partiality."

Id.

25

1 Arbitration constituted a "material conflict of interest" 2 requiring disclosure to the parties. Scandinavian, 732 F. Supp. 3 2d at 308. Relying upon our decisions in Morelite and Applied 4 Industrial, the court then decided that Dassenko and Gentile's 5 failure to disclose that simultaneous service warranted vacatur 6 on evident-partiality grounds. We disagree. 7 The evident-partiality standard is, at its core, 8 directed to the question of bias. Because it was "[not] the 9 purpose of Congress to authorize litigants to submit their cases 10 and controversies" to arbitrators who are "biased against one 11 litigant and favorable to another," Commonwealth Coatings, 393 12 U.S. at 150 (Black, J.) (plurality opinion), the FAA provides for 13 vacatur of arbitral awards whenever it is "evident" that an 14 arbitrator was "partial[]" to one of the litigating parties. 9 15 U.S.C. § 10(a)(2). It follows that where an undisclosed matter 16 is not suggestive of bias, vacatur based upon that nondisclosure 17 cannot be warranted under an evident-partiality theory. See, 18 e.g., STMicroelecs., N.V. v. Credit Suisse Sec. (USA) LLC, 648 19 F.3d 68, 74 (2d Cir. 2011) (recognizing in dicta that the 20 "evident partiality" decisions address only "facts bearing on 21 partiality") (emphasis in original); Lagstein v. Certain 22 Underwriter's at Lloyd's, London, 607 F.3d 634, 646 (9th Cir. 23 2010) (emphasizing that an arbitrator is "required to disclose 24 only facts indicating that he might reasonably be thought biased 25 against one litigant and favorable to another") (emphasis in 26 original; internal quotation marks omitted).

26

1 Several courts have identified a variety of factors for 2 use in guiding a district court in the application of the 3 evident-partiality test in cases where a party seeks vacatur of 4 an arbitration award because of an arbitrator's nondisclosure. We 5 find those adopted by the Fourth Circuit helpful:

6 To determine if a party has established 7 [evident] partiality, a court should assess 8 four factors: "(1) the extent and character 9 of the personal interest, pecuniary or 10 otherwise, of the arbitrator in the 11 proceedings; (2) the directness of the 12 relationship between the arbitrator and the 13 party he is alleged to favor; (3) the 14 connection of that relationship to the 15 arbitrator; and (4) the proximity in time 16 between the relationship and the arbitration 17 proceeding."

18 Three S Del., Inc., 492 F.3d at 530 (quoting ANR Coal Co. v. 19 Cogentrix of N.C., Inc., 173 F.3d 493, 500 (4th Cir. 1999), cert. 20 denied, 528 U.S. 877 (1999)). While those factors are useful, we 21 do not view them as mandatory, exclusive or dispositive.18

18

Several district courts in this Circuit have employed similar factors that may be considered in undertaking the Morelite analysis. See, e.g., Toroyan v. Barrett, 495 F. Supp.

2d 346, 352 (S.D.N.Y. 2007) (considering "(1) the financial interest the arbitrator has in the proceeding; (2) the directness of the alleged relationship between the arbitrator and a party to the arbitration; (3) and the timing of the relationship with respect to the arbitration proceeding" (internal quotation marks omitted)); In re Arbitration between Carina Int'l Shipping Corp.

& Adam Mar. Corp., 961 F. Supp. 559, 568 (S.D.N.Y. 1997)

(considering "(1) peculiar commercial practices in the geographic area; (2) an arbitrator's financial interest in the arbitration;

(3) the nature of the relationship between the arbitrator and the alleged favored party; and (4) whether the relationship existed during the arbitration").

27

1 We conclude that Scandinavian has not met its burden of 2 establishing that Dassenko and Gentile's service in the Platinum 3 Arbitration was indicative of bias in these proceedings so as to 4 constitute a nontrivial conflict of interest.19 Therefore, the 5 arbitrators' failure to disclose their concurrent service does 6 not require vacatur. 7 First, as a general matter, we do not think that the 8 fact that two arbitrators served together in one arbitration at 9 the same time that they served together in another is, without 10 more, evidence that they were predisposed to favor one party over 11 another in either arbitration. The undisclosed matter here was 12 overlapping arbitral service, not a "material relationship with a 13 party," Applied Industrial, 492 F.3d at 137, such as a family 14 connection or ongoing business arrangement with a party or its 15 law firm -- circumstances in which a reasonable person could 16 reasonably infer a connection between the undisclosed outside 17 relationship and the possibility of bias for or against a 18 particular arbitrating party. We agree with St. Paul that "the 19 mere fact of [such] overlapping arbitral service suggests nothing 20 inherently negative about the impartiality of the arbitrators."20

19

Because Dassenko and Gentile had actual knowledge of the facts surrounding their participation in the Platinum Arbitration, we need only consider whether these facts were sufficiently suggestive of bias. We need not address any potential duty to investigate.

20

Such overlapping service is not only not a circumstance inherently indicative of bias; it is also not unusual. In specialized fields such as reinsurance, where there are a limited

28

1 Appellants' Reply Br. at 19. And despite the overlap, there is 2 no indication here that either of the arbitrators was predisposed 3 to rule any particular way in the Scandinavian Arbitration as a 4 result of the Platinum Arbitration. 5 Scandinavian, in arguing to the contrary, appears to 6 ask us to infer partiality from the arbitrators' overlapping 7 service because the Award in the St. Paul Arbitration was 8 rendered in St. Paul's favor. But the fact that one party loses 9 at arbitration does not, without more, tend to prove that an 10 arbitrator's failure to disclose some perhaps disclosable 11 information should be interpreted as showing bias against the 12 losing party. We have repeatedly said that adverse rulings alone 13 rarely evidence partiality, whether those adverse rulings are 14 made by arbitrators, see, e.g., Thomas C. Baer, Inc. v. 15 Architectural & Ornamental Iron Workers Local Union No. 580, 813 16 F.2d 562, 565 (2d Cir. 1987), or by judges, see, e.g., Chen v. 17 Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009)

number of experienced arbitrators, it is common for the same arbitrators to end up serving together frequently. See, e.g., Dow Corning Corp. v. Safety Nat'l Cas. Corp., 335 F.3d 742, 750 (8th Cir. 2003) ("[T]he relatively small number of qualified arbitrators may make it common, if not inevitable, that parties will nominate the same arbitrators repeatedly."), cert. denied, 540 U.S. 1219 (2004); Sphere Drake Ins. Ltd. v. All Am. Life Ins.

Co., 307 F.3d 617, 620 (7th Cir. 2002) (discussing the presence of "repeat players" in the arbitration bar), cert. denied, 538 U.S. 961 (2003); Transit Cas. Co. v. Trenwick Reins. Co., 659 F.

Supp. 1346, 1353-54 (S.D.N.Y. 1987) ("[T]he number of qualified arbitrators available to sit on insurance arbitration disputes is quite small and . . . arbitrators often sit together on a number of disputes."), aff'd, 841 F.2d 1117 (2d Cir. 1988).

29

1 (per curiam) (citing Liteky v. United States, 510 U.S. 540, 555 2 (1994)). 3 Nor do we consider any of the identified similarities 4 between the St. Paul Arbitration and the Platinum Arbitration to 5 suggest bias. The district court was correct in observing that 6 the same witness, Hedges, testified in both proceedings; that the 7 interpretation of stop-loss reinsurance agreements containing 8 "experience account" features was at issue in both; and that past 9 and ongoing business relationships existed between Platinum and 10 its affiliates and St. Paul and its affiliates. See 11 Scandinavian, 732 F. Supp. 2d at 307-08. But the fact that one 12 arbitration resembles another in some respects does not suggest 13 to us that an arbitrator presiding in both is somehow therefore 14 likely to be biased in favor of or against any party. Cf. 15 Liteky, 510 U.S. at 561-62 (Kennedy, J., concurring) (observing 16 that the fact that same judge presides over related cases 17 ordinarily does not suggest that judge is biased). 18 To be sure, as Scandinavian points out, material 19 conflicts of interest need not be direct relationships between 20 arbitrators and parties to the arbitration. As the district 21 court put it, "[a] reasonable person concludes that an arbitrator 22 is partial to one side because the undisclosed relationship is 23 material, not because the material relationship is with a party." 24 Id. at 306. But, in ascertaining whether a relationship is 25 "material" -- or, to use the terminology of Applied Industrial, 26 whether it is "nontrivial" -- we think that a court must focus on

30

1 the question of how strongly that relationship tends to indicate 2 the possibility of bias in favor of or against one party, and not 3 on how closely that relationship appears to relate to the facts 4 of the arbitration. See Morelite, 748 F.2d at 84 ("[E]vident 5 partiality . . . will be found where a reasonable person would 6 have to conclude that an arbitrator was partial to one party to 7 the arbitration." (internal quotation marks omitted)). In other 8 words, even if a particular relationship might be thought to be 9 relevant "to the arbitration at issue," Scandinavian, 732 F. 10 Supp. 2d at 307, that relationship will nevertheless not 11 constitute a material conflict of interest if it does not itself 12 tend to show that the arbitrator might be predisposed in favor of 13 one (or more) of the parties. As we put it in Applied 14 Industrial, for a relationship to be material, and therefore 15 require disclosure, it must be such that "[a] reasonable person 16 would have to conclude that an arbitrator who failed to disclose 17 [it] . . . was partial to one side." Applied Industrial, 492 18 F.3d at 137. 19 We understand, of course, that Gentile was a party- 20 appointed arbitrator in each arbitration, and that he represented 21 the respective claimants (St. Paul and Platinum) in each.21 We

21

Before the district court, St. Paul argued in passing that Scandinavian should bear a higher burden for proving partiality as to Gentile than as to Dassenko because Gentile is a party-

appointed arbitrator. Several courts have observed that, in tripartite arbitrations such as this one, parties often expect the party-appointed arbitrators to serve as informal advocates for their respective parties in deliberating with the neutral third arbitrator. See, e.g., Sphere Drake, 307 F.3d at 620 (7th

31

1 also acknowledge the district court's factual findings that 2 Platinum and its affiliates and St. Paul and its affiliates had 3 various past and ongoing business relationships. See 4 Scandinavian, 732 F. Supp. 2d at 301-02. But there is no 5 indication in the record that Gentile was appointed by Platinum 6 at the recommendation of St. Paul, or that Gentile or Dassenko 7 had any special financial or professional interest in ruling in 8 St. Paul's favor as a result of their participation in the 9 Platinum Arbitration. 10 Scandinavian asserts that vacatur is nonetheless 11 warranted because it was misled by Dassenko's and Gentile's 12 repeated assurances to the parties that they understood 13 themselves obligated to make thorough and ongoing disclosures. 14 In light of those assurances and the many opportunities during

Cir. 2002), cert. denied, 538 U.S. 961 (2003); Lozano v. Md. Cas.

Co., 850 F.2d 1470, 1472 (11th Cir. 1988); In re Arbitration between Astoria Med. Grp. & Health Ins. Plan of Greater N.Y., 11 N.Y.2d 128, 133-34, 182 N.E.2d 85, 227 N.Y.S.2d 401 (1962). But see Florasynth, Inc. v. Pickholz, 750 F.2d 171, 173 (2d Cir.

1984) (suggesting that party-appointed arbitrators are "not to act merely as partisan advocates"). And for that reason, several of our sister circuits have concluded that the FAA imposes a heightened bar to, or altogether forecloses, an evident-

partiality challenge premised solely on the alleged bias of a party-appointed arbitrator in favor of the party who appointed him. See, e.g., Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 551-52 (8th Cir. 2007); Nationwide Mut. Ins. Co. v. Home Ins.

Co., 429 F.3d 640, 645-47 & n.8 (6th Cir. 2005); Sphere Drake Ins. Ltd., 307 F.3d at 623. However, because St. Paul has not pressed that argument on appeal -- and because we conclude that Scandinavian's evident-partiality challenge fails in any event --

we need not decide at this time whether the FAA imposes a heightened burden of proving evident partiality in cases in which the allegedly biased arbitrator was party-appointed.

32

1 the St. Paul Arbitration when the arbitrators' concurrent service 2 in the Platinum Arbitration might have come to mind, Scandinavian 3 argues, "[b]oth arbitrators simply could not have continually 4 failed to see what was right in front of their eyes for so long." 5 Appellee's Br. at 48. The district court, apparently crediting 6 this argument, indicated that in ordering vacatur it relied on 7 the fact that Dassenko and Gentile had informed the parties of 8 many other "less significant or temporally remote relationships." 9 Scandinavian, 732 F. Supp. 2d at 308-09. 10 We conclude that vacatur was not called for. In the 11 first place, we do not think it appropriate to vacate an award 12 solely because an arbitrator fails to consistently live up to his 13 or her announced standards for disclosure, or to conform in every 14 instance to the parties' respective expectations regarding 15 disclosure.22 The nondisclosure does not by itself constitute 16 evident partiality. The question is whether the facts that were

22

Even where an arbitrator fails to abide by arbitral or ethical rules concerning disclosure, such a failure does not, in itself, entitle a losing party to vacatur. See, e.g., Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 285 n.5 (5th Cir. 2007); Montez v. Prudential Sec., Inc., 260 F.3d 980, 984 (8th Cir. 2001); ANR Coal Co., 173 F.3d at 499;

Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 680-81 (7th Cir. 1983), cert. denied, 464 U.S. 1009 (1983). But see Commonwealth Coatings, 393 U.S. at 149 (Black, J.) (plurality opinion) (describing the AAA disclosure guidelines as "highly significant" to the evident partiality analysis); New Regency Prods., Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101, 1109-10 (9th Cir. 2007) (relying on ethical and arbitral rules as persuasive authority). This is not a case in which the parties have specified a standard for arbitrator impartiality.

Accordingly, we need not decide whether noncompliance with such an agreed-upon standard would require a finding of "evident partiality."

33

1 not disclosed suggest a material conflict of interest. An 2 approach that examined why an arbitrator failed to disclose a 3 relationship would interject added uncertainty and subjectivity 4 into our evident-partiality analysis. See Int'l Bhd. of 5 Teamsters, 170 F.3d at 146 (describing the test for evident 6 partiality as being "whether an objective, disinterested 7 observer" would conclude that the arbitrator was biased (emphasis 8 added)). Such an approach might, moreover, have perverse effects 9 because if it were the rule that vacatur would be warranted for 10 an arbitrator's failure to live up to his or her own particularly 11 punctilious standards of disclosure, arbitrators would have less 12 of an incentive to set a high standard for their disclosures in 13 the first place. 14 Secondly, we reject Scandinavian's assertion that the 15 nondisclosure can only be explained by bias in favor of St. Paul. 16 The record does not indicate why the information was not 17 disclosed, but we do not find it implausible that Dassenko and 18 Gentile labored under the false impression that they had made a 19 disclosure which in fact they had failed to make, particularly in 20 light of the fact that they did disclose (although not by name) 21 the existence of the Scandinavian arbitration in the PMA 22 proceeding. St. Paul suggests that the nondisclosure may have 23 occurred because of "sheer inadvertence, a mistaken belief that 24 they had already disclosed it, or non-materiality." Appellants' 25 Reply Br. at 18. Indeed, Peter Gentile seems to have operated 26 under just such a false impression with respect to another matter

34

1 which he failed to disclose until late in the arbitration. In 2 any event, the arbitrators' conduct is not such that a 3 "reasonable person would have to conclude that an arbitrator was 4 partial" to St. Paul. Morelite, 748 F.2d at 84 (emphasis added). 5 We also reject Scandinavian's argument that vacatur is 6 required because the presentation of its arbitration case was 7 disadvantaged by Dassenko's and Gentile's nondisclosure. See, 8 e.g., Appellee's Br. at 44 ("If Scandinavian had known that 9 Dassenko and Gentile had recently heard Hedges defend a contrary 10 [position] in the other arbitration, it could have prepared for 11 and presented Hedges' testimony in the [St. Paul] [A]rbitration 12 differently, or not called him as a witness at all."); see also 13 Scandinavian, 732 F. Supp. 2d at 308 & n.122 (concluding that the 14 nondisclosure "deprived Scandinavian[] of an opportunity to . . . 15 adjust [its] arbitration strategy," id. at 308). The FAA does 16 not bestow on a party the right to receive information about 17 every matter that it might consider important or useful in 18 presenting its case. A party is not entitled to the "'complete 19 and unexpurgated business biograph[ies]'" of the arbitrators whom 20 the parties have selected. Applied Industrial, 492 F.3d at 139 21 (quoting Commonwealth Coatings, 393 U.S. at 151 (White, J., 22 concurring)). 23 Finally, we are not persuaded that other reasons given 24 by the district court for vacating the award require us to 25 conclude that the arbitrators were "evident[ly] partial[]." The 26 district court noted, Dassenko and Gentile "could [have]

35

1 receive[d] ex parte information" in the Platinum Arbitration 2 about matters at issue in the St. Paul Arbitration, Scandinavian, 3 732 F. Supp. 2d at 308; and might have been influenced by the 4 "credibility determinations" they made about Hedges, id.; and 5 could have "influence[d] each other's thinking on issues relevant 6 to the [St. Paul] Arbitration," id. But these possibilities do 7 not establish bias. See Trustmark Ins. Co. v. John Hancock Life 8 Ins. Co. (U.S.A.), 631 F.3d 869, 873 (7th Cir. 2011) (arbitrators 9 not disqualified merely because they acquired relevant knowledge 10 in a previous arbitration), cert. denied, 131 S. Ct. 2465 (2011); 11 Int'l Bhd. of Teamsters, 170 F.3d at 147 (evident partiality "may 12 not be based simply on speculation"). Neither do they 13 distinguish this case from any number of others successfully 14 presided over by arbitrators -- or by judges for that matter. 15 To be sure, in this case -- unlike in Applied 16 Industrial -- Dassenko and Gentile plainly "had actual knowledge" 17 of their concurrent service in the Platinum Arbitration. 18 Scandinavian, 732 F. Supp. 2d at 309. Although it would have 19 been far better for them to have disclosed that fact, we do not 20 think disclosure was required to avoid a vacatur of the Award in 21 light of the fact that the relationship did not significantly 22 tend to establish partiality. 23 We do not in any way wish to demean the importance of 24 timely and full disclosure by arbitrators. Disclosure not only 25 enhances the actual and apparent fairness of the arbitral 26 process, but it helps to ensure that that process will be final,

36

1 rather than extended by proceedings like this one. We again 2 reiterate Justice White's observation that it is far better for a 3 potential conflict of interest "[to] be disclosed at the outset" 4 than for it to "come to light after the arbitration, when a 5 suspicious or disgruntled party can seize on it as a pretext for 6 invalidating the award." Commonwealth Coatings, 393 U.S. at 151 7 (White, J., concurring); accord Applied Industrial, 492 F.3d at 8 139; Lucent Techs., 379 F.3d at 29; Andros Compania Maritima, 579 9 F.2d at 700. But the better course is not necessarily the only 10 permissible one. 11 Because we agree with St. Paul that the district court 12 erred in vacating the Award in this case, we need not consider 13 its alternative argument on appeal that the district court should 14 not have vacated the arbitrators' interim rulings. 15 III. Confirmation of the Award 16 Under section 9 of the FAA, "a court 'must' confirm an 17 arbitration award 'unless' it is vacated, modified or corrected 18 'as prescribed' in §§ 10 and 11." Hall St. Assocs., L.L.C. v. 19 Mattel, Inc., 552 U.S. 576, 582 (2008). And for petitions 20 brought under the New York Convention, "[t]he court shall confirm 21 the award unless it finds one of the grounds for refusal or 22 deferral of recognition or enforcement of the award specified in 23 the said Convention." 9 U.S.C. § 207; see also Telenor Mobile 24 Commc'ns AS v. Storm LLC, 584 F.3d 396, 405 (2d Cir. 2009) (same, 25 citing section 207).

37

1 Scandinavian has identified no basis other than the 2 asserted evident partiality for vacating the Award under the FAA 3 or New York Convention. Because we conclude that evident 4 partiality was absent, St. Paul's cross-petition to confirm the 5 Award must be granted. 6 CONCLUSION 7 The judgment of the district court is reversed, and the 8 case is remanded with instructions to the district court to deny 9 Scandinavian's petition to vacate the Award, to grant St. Paul's 10 cross-petition to confirm it, and to enter an amended judgment 11 accordingly.