Introduction: Arbitrator Disclosure and Evident Partiality
Part II of our Businesspersons’ Federal Arbitration Act (“FAA”) FAQ guide on evident partiality discussed evident partiality standards and how they are designed to enforce the parties’ expectations of neutrality without significantly undermining the finality of arbitration awards. (See Part II.) This Part III discusses arbitrator disclosure procedures and requirements and how, as a matter of arbitration procedure, they implement evident partiality standards and facilitate judicial determination of whether an arbitrator is guilty of evident partiality. It also provides a list of certain U.S. Circuit Court of Appeals cases that have either held that an arbitrator was guilty of evident partiality or remanded to the district court for an evidentiary hearing on evident partiality.
Evident Partiality and Disclosure: Presumed v. Actual Bias
“Evident partiality” challenges typically arise out of one of two scenarios. First, there are “presumed bias” cases in which the arbitrator’s relationships or interests would lead a reasonable person to conclude that the arbitrator is biased, even though the challenger cannot prove actual bias.
Second, and considerably less frequently, there are evident partiality challenges based on allegations of actual bias. Suppose a neutral said on the record during the proceedings prior to deliberations: “Party A, frankly I have distrusted your company’s business motives for many years before I was appointed arbitrator in this matter, but hearing your witnesses’ testimony has simply confirmed what I’ve known all along.” While the chances of an arbitrator making such a statement (let alone on the record!) are exceedingly slim to non-existent, it would provide the basis for an evident partiality challenge (which would probably succeed) based on proof of actual bias. See Morelite v. N.Y.C. Dist. Council Carpenters, 748 F.2d 79, 84 (2d Cir. 1984).
The difference between “presumed” and “actual” bias (or prejudice) is essentially one of proof. As its name suggests, “presumed” bias is established by circumstantial evidence, principally relationships or interests, that supports a sufficiently powerful inference of bias. For example, direct evidence of the arbitrator having a material financial interest in the outcome of an arbitration is strong circumstantial evidence that the arbitrator, whether he or she is conscious of it or not, would, as a matter of human nature and experience, likely be predisposed to rule in a way that advanced that financial interest. James Madison’s famous words in Federalist 10 sum it up well: “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10, p. 59 (J. Cooke ed. 1961) (J. Madison)); see Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009).
Of course, there is at least a possibility that an arbitrator might not be swayed by her interest in the outcome. Therefore, direct evidence of interest in the outcome does not prove directly that the interested arbitrator was biased or prejudiced. But the inference of bias or prejudice caused by a financial or personal interest in the outcome is sufficiently strong that the Second Circuit, and other circuits, consider clear evidence of an arbitrator’s personal or financial interest in the outcome to be sufficient to establish evident partiality. They require proof of “presumed,” not “actual,” bias.
“Actual bias” (or “actual prejudice”) is established when there is direct evidence that the arbitrator harbored an inappropriate disposition against one party or in favor of another. Since bias and prejudice is a state of mind, direct evidence is exceedingly rare. See Morelite, 748 F.2d at 84 (“Bias is always difficult, and indeed often impossible, to ‘prove.’ Unless an arbitrator publicly announces his partiality, or is overheard in a moment of private admission, it is difficult to imagine how ‘proof’ would be obtained.”)
Our focus will be on “presumed bias” cases because they understandably arise with greater frequency. Because judicial evident partiality standards, including the Second Circuit’s “reasonable person” standard, require a showing less than actual bias, evidence of actual bias sufficient to establish evident partiality would necessarily establish evident partiality under the “reasonable person” standard.
Implementing Evident Partiality Standards Through the Disclosure Process
The now-familiar requirement that arbitrators disclose at the outset of the proceedings non-trivial conflicts of interest (such as a significant, ongoing business relationship with one of the parties) and any other relevant information bearing on the arbitrator’s ability to meet the parties’ expectations of neutrality, was developed to address practical challenges arbitration parties face, facilitate implementation of evident partiality standards, and provide a framework for courts to assess evident partiality claims.
The U.S. Supreme Court imposed the disclosure requirement in Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145 (1968). The Second Circuit has interpreted Associate Justice Hugo Black’s Commonwealth Coatings plurality opinion, together with Associate Justice Byron White’s concurring opinion, as holding that “an arbitrator’s failure to disclose a material relationship with one of the parties[,]” or a material interest in the outcome, “can constitute ‘evident partiality’ requiring vacatur of the award. See Lucent Technologies Inc. v. Tatung Co., 379 F.3d 25, 28 (2d Cir. 2004) (citing Commonwealth Coatings, 393 U.S. at 147-48); accord Certain Underwriting Members of Lloyd’s of London v. Florida Dep’t of Fin. Servs., 892 F.3d 501, 506 (2d Cir. 2018); Scandinavian Reinsurance Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 72 (2d Cir. 2012) (“Scandinavian Re”)(“Among the circumstances under which the evident-partiality standard is likely to be met are those in which an arbitrator fails to disclose a relationship or interest that is strongly suggestive of bias in favor of one of the parties.”); Applied Indus. Material Corp. v. Ovalar, 492 F.3d 132, 137 (2d Cir. 2007) (“An arbitrator who knows of a a material relationship with a party and fails to disclose it meets Morelite’s “evident partiality” standard: A reasonable person would have to conclude that an arbitrator who failed to disclose under such circumstances was partial to one side.”)
This disclosure requirement incentivizes arbitrators to disclose not only conflicts that are material, but any relationships or interests that might create even an appearance of partiality, as well as present or past relationships or interests that are entirely innocuous. There is certainly nothing wrong with that, and, if anything, it, through disclosure of conflicts or potential conflicts, encourages transparency in arbitration.
The Second Circuit has added a requirement for arbitrators not only to disclose known conflicts, but also to conduct a reasonable investigation to determine whether a material relationship or interest exists, provided the “arbitrator has reason to believe that a nontrivial conflict of interest might exist. . . .” Ovalar, 492 F.3d at 138 (emphasis added). “[A]rbitrators[,]” the Court in Ovalar explained, “must take steps to ensure that the parties are not misled into believing that no non-trivial conflict exists.” Ovalar, 492 F.3d at 138. Therefore, “where 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.” Ovalar, 492 F.3d at 138. The Second Circuit has “emphasize[d] that [it has] not creat[ed] a freestanding duty to investigate[,]” and that “[t]he mere failure to investigate is not, by itself, sufficient to vacate an arbitration award.” Ovalar, 492 F.3d at 138. “But when[,]” said the Court, “an arbitrator knows of a potential conflict, a failure to either investigate or disclose an intention not to investigate is indicative of evident partiality.” Ovalar, 492 F.3d at 138.
Disclosure, Nondisclosure and Motions to Vacate
Putting aside cases where a duty to investigate is triggered, there are typically two disclosure scenarios that may give rise to a motion to vacate on evident partiality grounds. First, an arbitrator may disclose a conflict of interest that one of the parties reasonably considers to be strongly suggestive of evident partiality. Assuming that a party timely objects to the conflict, the arbitrator does not voluntarily step down, the arbitrators make an award adverse to the objecting party, and the party timely moves to vacate, then the objecting party can challenge the award on evident partiality grounds, and the court will determine whether a reasonable person would, given the circumstances, have to conclude that an arbitrator who disclosed that conflict, but did not step down when requested, was guilty of evident partiality.
Second, an arbitrator may fail to disclose an actual or potential conflict of interest, which is subsequently discovered by one of the parties who promptly and timely objects. That party may also legitimately move to vacate the award based on evident partiality grounds, and the court would have to determine whether a reasonable person would, in the circumstances, have to conclude that an arbitrator who failed to disclose the actual or potential conflict was partial to the party who prevailed in the arbitration (or biased against party who did not).
Certain arbitration provider rules may provide for the arbitration provider to rule, at least in the first instance, on whether an arbitrator should be disqualified for bias or prejudice. Practitioners should be very wary about agreeing to an arbitration provider making final and binding decisions on evident partiality or arbitrator qualifications, for such decisions may be subject only to the highly deferential standard of review available under Section 10(a)(4). Parties should consult with counsel prior to agreeing to arbitrate under arbitration provider rules that might empower providers to make final and binding decisions on arbitrator disqualification. Decisions concerning bona fide evident partiality claims (and arbitrator qualifications) are extremely important, and, in the author’s view, should be made pursuant to Section 10(a)(2) by a court from which there is a right to appeal.
Disclosure Facilitates Early Vetting of Potential Conflicts
The disclosure requirement, including the Second’s Circuit’s duty to investigate, provides an opportunity for the parties to vet and waive at the outset conflicts of interest that might otherwise provide the basis for a losing party to challenge the award. If disclosure is made, and a party fails to object, that party ordinarily waives its right to challenge a later award based on the disclosed conflict. See, e.g., Kiernan v. Piper Jaffray Cos. 137 F.3d 588, 593-94 (8th Cir. 1998); Cook Indus. v. Itoh & Co., 449 F.2d 106, 107-08 (2d Cir. 1971), cert. denied, 405 U.S. 921 (1972).
Early vetting coupled with the waiver should reduce the risk that time and expense will be invested in a proceeding that results in an award that is ultimately subject to vacatur for evident partiality. Before the parties know the outcome of the arbitration, they are more likely to consider a potential conflict to be trivial and waive it. But if undisclosed and not discovered until after an award has been made, the losing party may understandably perceive the potential conflict to be more serious than it was and move to vacate the award. The motion may not be successful, but it may not be frivolous either, and the parties and the court will end up incurring time and money costs.
Disclosure may Serve Other Useful Purposes
Arbitrator disclosure may serve purposes other than implementing evident partiality standards. As the Seventh Circuit observed, if an arbitrator unduly frustrates a party’s access to information pertinent to neutrality or qualifications there might be grounds for vacatur based on the arbitrator’s exceeding her powers: “[f]ailure to comply with a[n] [express or implied] contractual requirement designed to facilitate the search for an acceptable neutral might imply that the neutral exceeded his authority, spoiling the award under 9 U.S.C. § 10(a)(4).” Sphere Drake Ins. Co. v. All American Life Ins. Co., 307 F.3d 617, 623 (7th Cir. 2002).
On tripartite panels arbitrator disclosure may implicate Section 10(a)(4) in a different way. The information arbitrators disclose may be useful to their colleagues in determining what to make of the positions the disclosing arbitrator takes during deliberations. A failure to make disclosure, might, in appropriate circumstances, establish that the arbitrator exceeded his powers under Section 10(a)(4) of the FAA. Cf. Sphere Drake, 307 F.3d at 623 (“We have not been given any reason to think that umpire Huggins wanted more information from [party-appointed arbitrator] Jacks in order to know what to make of Jacks’ arguments during deliberations.”); Winfrey, 495 F.3d at 552 (“Simmons presents no evidence indicating that Butler’s partiality deceived or misled the other two arbitrators.”).
What Constitutes a “Material” Relationship or Interest?
Not every disclosure failure establishes evident partiality. Scandinavian Re, 668 F.3d at 72-74; Certain Underwriting Members, 892 F.3d at 507. Only relationships or interests that are “material” must be disclosed and constitute “evident partiality” when not disclosed. Certain Underwriting Members, 892 F.3d at 506-07 (and cases cited).
“Material,” as used by the Second Circuit, has the same meaning as “nontrivial[,]” the term used by the U.S. Supreme Court in Commonwealth Coatings. Scandinavian Re, 668 F.3d at 75. A material “relationship or interest” is one “that is strongly suggestive of bias in favor of one of the parties.” Scandinavian Re, 668 F.3d at 72. “Past” business or personal “contacts” generally do not constitute material relationships. See Certain Underwriting Members, 892 F.3d at 507. “When,” said the Second Circuit, “an arbitrator’s relationship with a party materially ends before the party appointed him as an arbitrator, one cannot say that a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.” 892 F.3d at 507 (quotation and citation omitted; cleaned up). In assessing whether an undisclosed relationship is material, and thus indicative of evident partiality, the Second Circuit finds “helpful”— but not “mandatory, exclusive or dispositive”—the following four factors:
‘(1) the extent and character of the personal interest, pecuniary or otherwise, of the arbitrator in the proceedings; (2) the directness of the relationship between the arbitrator and the party he is alleged to favor; (3) the connection of that relationship to the arbitrator; and (4) the proximity in time between the relationship and the arbitration proceeding.’
Scandinavian Re, 668 F.3d at 74 (quoting Three S Del. v. Dataquick, 492 F.3d 520, 530 (4th Cir. 2007) (quoting ANR Coal Co. v. Cogentrix of N.C., Inc., 173 F.3d 493, 500 (4th Cir. 1999))).
Certainly, an interest or relationship would satisfy the test for materiality if it would lead a reasonable person to conclude that the arbitrator was biased. But there is at least a theoretical question concerning whether there might be a relationship or interest that is, for disclosure purposes, “material” in the sense that a reasonable person would likely (but not necessarily) conclude that an arbitrator having that interest or relationship was biased in favor of or against a party. If an arbitrator, knowing of that relationship, fails to disclose it, does that mean that a reasonable person would then have to conclude that the arbitrator was biased or prejudiced, and thus guilty of evident partiality?
The Second Circuit has said the “reasonable person” test for evident partiality may be satisfied where the arbitrator “knows of a material relationship with a party and fails to disclose it,” because “[a] reasonable person would have to conclude that an arbitrator who failed to disclose under such circumstances was partial to one side.” See Ovalar, 492 F.3d at 137-38. That statement could be interpreted to mean that there may be relationships and interests that are “material” in the sense that they must be disclosed but are only serious enough to constitute evident partiality if they are not disclosed.
The problem with that interpretation is that a conflict remains a conflict whether or not it is disclosed, and irrespective of what the arbitrator’s subjective state of mind might be. Suppose a neutral arbitrator owned a 25% equity interest in one of the parties, a closed corporation. The neutral dutifully discloses the conflict and says her ownership will not affect her ability to act as a neutral. And suppose the neutral firmly believes what she says despite her rather significant financial interest in the matter over which she is asked to preside. One of the parties objects, the neutral refuses to resign, and – although no one can prove or disprove it – the arbitrator acts completely impartially and gives the losing party the benefit of every doubt.
Under these facts the party challenging the award would have a very strong (indeed, probably surefire) motion to vacate under the law of every (or virtually every) circuit. A material financial or personal interest in the outcome remains material irrespective of whether it is disclosed.
Relationships (as opposed to interests) may present more nuanced fact patterns that present closer questions, but a relationship— like a personal or financial interest in the outcome—is also generally either material or not, without regard to whether it is or isn’t disclosed. Post-Ovalar Second Circuit decisions suggest that a conflict is “material” only if a reasonable person, knowing of the conflict, would conclude that the arbitrator laboring under it was biased in favor of or against a party.
In Scandinavian Re, the Court characterized as “material” “a relationship or interest that is strongly suggestive of bias. . . [.]” Scandinavian Re, 668 F.3d at 72. According to the Court, “[t]he nondisclosure does not by itself constitute evident partiality.” Scandinavian Re, 668 F.3d at 77. “The question[,]” said the Court, “is whether the facts that were not disclosed suggest a material conflict of interest.” Id. (emphasis in original) It would “add[] uncertainty and subjectivity into our evident partiality analysis[]” if the Court adopted “[a]n approach that examined why an arbitrator failed to disclose a relationship. . . .” Scandinavian Re, 668 F.3d at 77 (emphasis added).
Certain Underwriting Members expressed the same or similar sentiments, noting that “[i]t is ‘the materiality of the undisclosed conflict [that] drives a finding of evident partiality, not the failure to disclose or investigate per se.’” Certain Underwriting Members, 892 F.3d at 506 (quoting National Indem. Co. v. IRB Brasil Resseguros S.A., 164 F. Supp. 3d 457, 476 (S.D.N.Y. 2016) (citing Scandinavian Re, 668 F.3d at 77) (citation and quotation omitted), aff’d, 675 F. App’x 89 (2d Cir. 2017)). ‘
While the matter may not be 100 percent free from doubt, it is difficult to imagine what relationship or interest a reasonable person would have to conclude established evident partiality if not disclosed, but which, if disclosed, would not constitute evident partiality. To the extent such interests or relationships exist, they are presumably rare.
Nevertheless, there is at least a slim chance that the Second Circuit (and perhaps other circuits) might, in appropriate cases, place some weight on the circumstances surrounding the nondisclosure itself in determining whether, based on all of the circumstances, the test for evident partiality is satisfied.
Disclosure: Arbitrators are Not Required to Disclose Matters within the Challenger’s Constructive Knowledge
Arbitrator disclosures are limited to matters about which the parties are not reasonably expected to know. See Certain Underwriting Members, 892 F.3d at 506. Especially in the context of industry arbitration, where the parties and their attorneys frequently know or should know of certain relationships that arbitrators may have with other parties, their attorneys, or fellow panel members, challenging parties are generally charged with constructive knowledge of those relationships. See Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 700 (2d Cir. 1978). The Second Circuit has “declined to vacate awards because of undisclosed relationships where the complaining party should have known of the relationship, or could have learned of the relationship just as easily before or during the arbitration rather than after it lost its case.” Certain Underwriting Members, 892 F.3d at 506 (citations and quotations omitted). Whether or not constructive knowledge will be imputed depends on the circumstances.
Non-Neutral Arbitrators and Disclosure
As we explained in Part II, “[t]he principles and circumstances that counsel tolerance of certain undisclosed relationships between arbitrator and litigant are even more indulgent of party-appointed arbitrators, who are expected to serve as de facto advocates.” Certain Underwriting Members, 892 F.3d at 508. Certain Underwriting Members, 892 F.3d at 509-10. According to the Second Circuit, absent arbitrator qualification language to the contrary, “[e]xpecting of party-appointed arbitrators the same level of institutional impartiality applicable to neutrals would impair the process of self-governing dispute resolution.” 892 F.3d at 510.
While generally parties expect partisan arbitrators to make disclosures, in the Second Circuit, the scope of the disclosure is more limited. The type of a material interests or relationships that may be deemed material for evident partiality purposes, and which may provide the basis for a successful motion to vacate, are generally ones evidencing (a) a violation of the arbitration agreement, such as breach of a stipulated arbitrator qualification, like disinterestedness; or (b) partiality that had a prejudicial effect on the award. Certain Underwriting Members, 892 F.3d at 510. Thus, if an arbitration agreement requires a arbitrator to be “disinterested,” the qualification “would be breached[,]” and evident partiality established, “if the party-appointed arbitrator had a personal or financial stake in the outcome of the arbitration.” 892 F.3d at 510.
As respects a “party-appointed arbitrator’s partiality ha[ving] a prejudicial effect on the award[,]” Certain Underwriting Members, 892 F.3d at 510-11 (citations and quotations omitted), the Second Circuit has said that “[i]n the absence of a clear showing that an undisclosed relationship (or the non-disclosure itself) influenced the arbitral proceedings or infected an otherwise-valid award, that award should not be set aside even if a reasonable person (or court) could speculate or infer bias[.]” Certain Underwriting Members, 892 F.3d at 510. The Second Circuit suggested that such a prejudicial effect on an award, might, for example, be shown by establishing an interest in the outcome like the neutral arbitrator in Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 146 (1968) had, where “the relationship [between the neutral arbitrator and one of the parties] even went so far as to include the rendering of services on the very projects involved in th[e]” dispute before that arbitrator. 393 U.S. at 146; see Certain Underwriting Members, 892 F.3d at 510-11 (citations omitted).
Discovery or Evidentiary Hearings on Evident Partiality
Courts may in the Second Circuit order discovery, an evidentiary hearing or both concerning evident partiality where a party can demonstrate clear evidence of impropriety, or in certain rare instances, when very substantial, material questions of fact exist. See Andros, 579 F.2d at 702 (“[I]n the special context of what are in effect post hoc efforts to induce arbitrators to undermine the finality of their own awards, we agree with the district court that any questioning of arbitrators should be handled pursuant to judicial supervision and limited to situations where clear evidence of impropriety has been presented.”); Sanko S.S. Co. v. Cook Indus., 495 F.2d 1260, 1265 (2d Cir. 1973) (remand to district court to consider additional evidence concerning an arbitrator’s undisclosed business relationships with a party, including whether challenging party had constructive knowledge of the relationship); Certain Underwriting Members, 892 F.3d at 511 (vacating and remanding “for. . . district court to determine whether the Underwriters have shown by clear and convincing evidence that the failure to disclose by party-appointed arbitrator . . . either violates the qualification of disinterestedness or had a prejudicial impact on the award. At the district court’s discretion, this undertaking may necessitate additional proceedings.”) (citing and quoting Sanko, 495 F.2d at 1265).
U.S. Circuit Court Cases that Have Held Arbitrators were Evidently Partial or Have Granted Discovery or a Hearing Concerning Evident Partiality
To give the reader an idea of what kinds of relationships and interests Federal Circuit Courts of Appeal have held constitute evident partiality, we cite below what we believe is fairly exclusive list of U.S. Circuit Court of Appeals cases that have, since the U.S. Supreme Court’s 1968 decision in Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), upheld an evident partiality challenge or have remanded such a challenge for discovery or an evidentiary hearing. This list includes only Federal Circuit Courts of Appeals, not federal district court or state court decisions. Thus far, Commonwealth Coatings is the only U.S. Supreme Court decision that has addressed an evident partiality challenge.
As you can see, the list is not very long:
- Monster Energy Co. v. City Beverages, LLC, 940 F.3d 1130 (9th Cir. 2019)
- Thomas Kinkade Co. v. White, 711 F.3d 719 (6th Cir. 2013)
- Applied Indus. Mat. Corp. v. Ovalar, 492 F.3d 132 (2d Cir. 2007)
- New Regency Prods., Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101 (9th Cir. 2007)
- University Commons-Urbana, Ltd. v. Universal Constructors, Inc., 304 F.3d 1331 (11th Cir. 2002) (granting evidentiary hearing)
- Olson v. Merrill Lynch, Pierce, Fenner Smith, 51 F.3d 157 (8th Cir. 1995)
- Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994)
- Pitta v. Hotel Ass’n of New York City, Inc., 806 F.2d 419 (2d Cir. 1986)
- Morelite Constr. Corp. v. New York City Dist. Council Carpenters Ben. Funds, 748 F.2d 79 (2d. Cir. 1984)
- Middlesex Mut. Ins. Co. v. Levine, 675 F.2d 1197 (11th Cir. 1982)
- Sanko S.S. Co., Ltd. v. Cook Industries, Inc., 495 F.2d 1260 (2d Cir. 1973) (granting evidentiary hearing)
We hope we have provided you with some useful, general information concerning evident partiality. In the next segment of this Businessperson’s FAA FAQ Guide, we will address arbitral “corruption” as a ground for vacatur under FAA Section 10(a)(2).
Contacting the Author
What constitutes evident partiality and under what circumstances is a controversial and sometimes elusive topic. The author has written about it extensively over the years, including here, here, here, and here, as well as in other publications. The author has briefed, argued, or both, a number of U.S. Courts of Appeals and federal district court cases on the subject over the years, including, among others, Certain Underwriting Members of Lloyds of London v. State of Florida, Dep’t of Fin. Serv., 892 F.3d 501 (2018); and Nationwide Mutual Ins. Co. v. Home Ins. Co., 429 F.3d 640 (2005).
If you have any questions about this article, arbitration, arbitration-law, arbitration-related litigation, or the services that the Loree Law Firm offers, then please contact the author, Philip Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.
Philip J. Loree Jr. has more than 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation. He is licensed to practice law in New York and before certain federal district and federal appellate courts.
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