The Honorable J. Garvan Murtha, of the United States District Court for the… v. St. Paul Fire & Marine Ins. Co. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND…

* The Honorable J. Garvan Murtha, of the United States
District Court for the District of Vermont, sitting by
designation.
10-0910-cv
Scandinavian Reins. Co. Ltd. v. St. Paul Fire & Marine Ins. Co.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Argued: January 28, 2011 Decided: February 3, 2012) 4
Docket No. 10-0910-cv 5
------------------------------------- 6
SCANDINAVIAN REINSURANCE COMPANY LIMITED, 7
Petitioner-Appellee, 8
- v - 9
SAINT PAUL FIRE AND MARINE INSURANCE COMPANY; ST. PAUL 10 REINSURANCE COMPANY, LIMITED; ST. PAUL RE (BERMUDA) LIMITED, 11
Respondents-Appellants. 12
------------------------------------- 13
Before: SACK and LIVINGSTON, Circuit Judges, and MURTHA, 14 District Judge.*
15
Appeal from a decision of the United States District 16
Court for the Southern District of New York (Shira A. Scheindlin, 17
Judge) granting a petition to vacate an arbitral award under the 18
Federal Arbitration Act on the basis of "evident partiality." 9 19
U.S.C. § 10(a)(2). The district court concluded that vacatur was 20
warranted because two of the three members of the arbitral panel 21
failed to disclose their simultaneous service as arbitrators in 22
another proceeding in which a common witness, similar legal 23
issues, and a related party were involved. We conclude that 24

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2
there was insufficient evidence before the district court on 1
which to base a finding of "evident partiality." We therefore 2
reverse and remand with instructions to confirm the arbitral 3
award. 4
PATRICIA A. MILLETT, Akin Gump Strauss 5 Hauer & Feld LLP, Washington, D.C.; 6 Barry A. Chasnoff, Rick H. Rosenblum, 7 David R. Nelson, Akin Gump Strauss Hauer 8 & Feld LLP, San Antonio, TX; Michael C. 9 Small, L. Rachel Helyar, Akin Gump 10 Strauss Hauer & Feld LLP, Los Angeles, 11 CA, for Petitioner-Appellee. 12
G. ERIC BRUNSTAD, JR., Collin O'Connor 13 Udell, Matthew J. Delude, Joshua W.B. 14 Richards, Wayne I. Pollock, Dechert, 15 LLP, Hartford, CT; David M. Raim, 16 William K. Perry, Joy L. Langford, 17 Chadbourne & Parke LLP, Washington, 18 D.C.; John F. Finnegan, Chadbourne & 19 Parke LLP, New York, NY, for 20 Respondents-Appellants. 21
SACK, Circuit Judge: 22
The primary question presented on this appeal is 23
whether the failure of two arbitrators to disclose their 24
concurrent service as arbitrators in another, arguably similar, 25
arbitration constitutes "evident partiality" within the meaning 26
of the Federal Arbitration Act (the "FAA"), 9 U.S.C. § 10(a)(2). 27
Respondents Saint Paul Fire and Marine Insurance Company; St. 28
Paul Reinsurance Company, Limited; and St. Paul Re Limited 29
(collectively, "St. Paul") appeal from a decision of the United 30
States District Court for the Southern District of New York 31
(Shira A. Scheindlin, Judge) granting a petition by Scandinavian 32
Reinsurance Company Limited ("Scandinavian") to vacate an 33
arbitral award rendered in St. Paul's favor and denying a cross- 34

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

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

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

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

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

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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-disclosure-
questionaire.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).
8
Although the Agreement did not require the arbitrators 1
to be affiliated with any particular arbitral association, all 2
three arbitrators were certified by the AIDA Reinsurance and 3
Insurance Arbitration Society ("ARIAS"). ARIAS has promulgated 4
ethical guidelines for certified arbitrators, including Canon IV, 5
which instructs arbitrators to "disclose any interest or 6
relationship likely to affect their judgment" and to resolve any 7
doubt about whether to disclose "in favor of disclosure." ARIAS 8
U.S., Code of Conduct - Canon IV, 9
http://www.arias-us.org/index.cfm?a=30 (last visited Dec. 20, 10
2011). In accordance with those guidelines, each of the 11
arbitrators made initial disclosures to the parties. The form of 12
those disclosures differed. 13
Dassenko, the umpire, responded in writing to a nine- 14
page questionnaire jointly submitted by the parties. 6 See [J.A. 15
112-30] Umpire Questionnaire (Nov. 21, 2007). In addition to 16
disclosing his past employment at several firms affiliated with 17
either St. Paul or Scandinavian, 7 Dassenko noted that it was 18
"likely" that he had "transacted or sought to transact business 19

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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.
9
with most of the entities" listed by the parties on the 1
questionnaire, including St. Paul and Scandinavian themselves. 2
Id. ¶ 6(c). Dassenko represented, however, that he had never had 3
any involvement with the subject matter of the dispute, nor did 4
he have any significant professional or personal relationship 5
with any officers, directors, or employees of the parties. 8
6
Dassenko also indicated that he had previously served as an 7
arbitrator in more than 150 insurance or reinsurance 8
arbitrations, including two arbitrations in which Rosen had also 9
been an arbitrator. At the prompting of St. Paul's counsel, 10
Dassenko made additional disclosures by email on November 27, 11
2007, with respect to certain matters that he had forgotten to 12
include in responding to the questionnaire. 13
The two party-appointed arbitrators made their initial 14
disclosures orally at an organizational meeting held on February 15
25, 2008. Both Rosen, the Scandinavian-appointed arbitrator, and 16
Gentile, the St. Paul-appointed arbitrator, made a variety of 17
disclosures about past and present employment, their 18
relationships to the parties or their law firms, and their 19
participation as witnesses or arbitrators in other proceedings 20

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

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

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

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

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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.
14
and Gentile each disclosed to Platinum and PMA that they were 1
then serving together as arbitrators in another matter -- the 2
arbitration at issue here -- neither of them specifically 3
identified St. Paul or Scandinavian as the parties involved in 4
it. 12 Id. at 300. 5
Similarities Between the Platinum 6
Arbitration and the St. Paul Arbitration 7
As described by the district court, the Platinum 8
Arbitration appeared to resemble the St. Paul Arbitration in 9
several ways. 10
First, as noted above, Gentile served as the party- 11
appointed arbitrator for the claimant in both proceedings, and 12
Dassenko presided as umpire over each panel. See id. at 300. 13
Second, although St. Paul was not itself a party to the 14
Platinum Arbitration, St. Paul's business was related in several 15
ways to Platinum's. See id. at 301-02. Most importantly, after 16
St. Paul contributed its rights to renew its existing reinsurance 17
contracts to Platinum's parent in 2002, Platinum succeeded St. 18
Paul as PMA's reinsurer. Moreover, the core of Platinum's claim 19
in the Platinum Arbitration was that, in calculating the balance 20
of the "experience account" created by the Platinum-PMA contract, 21
Platinum was entitled to carry forward certain losses that had 22
been incurred by St. Paul under St. Paul's previous reinsurance 23

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

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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.
16
the St. Paul Arbitration, Hedges testified in favor of 1
"interpreting the Scandinavian[-St. Paul] Agreement in light of 2
Scandinavian[]'s intent at the time it entered into the 3
agreement." Id. at 308 (emphasis in original). St. Paul, for 4
its part, argues that "the involvement of Hedges as a witness in 5
the two unrelated arbitrations is . . . irrelevant." Appellants' 6
Br. at 51. 7
Fourth, the district court determined that the two 8
arbitrations "shared similar [legal] issues." Id. at 307. 9
[B]oth arbitrations required the arbitrators 10
to (1) consider whether a finite [14]
11
retrocessional agreement should be enforced 12
according to the express terms of the 13
agreement or whether the agreement should be 14
interpreted in light of the parties' 15
intentions at the formation of the agreement 16
and (2) interpret contract language regarding 17
the creation of experience accounts. 18
Id. at 307 n.118. Again, however, St. Paul criticizes the 19
district court's assessment of similarity, arguing that it is 20
couched at an "overly broad" level of generality. Appellants' 21
Br. at 50. 22
The District Court Proceedings 23

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

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18
concurrent service in the Platinum Arbitration constituted 1
evident partiality. See Scandinavian, 732 F. Supp. 2d at 307-09. 2
The court observed that the two arbitrations "were presided over 3
by two common arbitrators, overlapped in time, shared similar 4
issues, involved related parties, [and] included Hedges as a 5
common witness." Id. at 307-08 (footnotes omitted). The court 6
further reasoned: 7
By participating in both the [St. Paul] 8
Arbitration and the Platinum[] Arbitration, 9
Dassenko and Gentile placed themselves in a 10
position where they could receive ex parte 11
information about the kind of reinsurance 12
business at issue in the [St. Paul] 13
Arbitration, be influenced by recent 14
credibility determinations they made as a 15
result of Hedges's testimony in the 16
Platinum[] Arbitration, and influence each 17
other's thinking on issues relevant to the 18
[St. Paul] Arbitration. By failing to 19
disclose their participation in the 20
Platinum[] [A]rbitration, Dassenko and 21
Gentile deprived Scandinavian[] of an 22
opportunity to object to their service on 23
both arbitration panels and/or adjust their 24
arbitration strategy. 25
Id. at 308 (footnote omitted). 26
The court also contrasted Dassenko's and Gentile's 27
failure to disclose their concurrent service in the Platinum 28
Arbitration with the many "other less significant or temporally 29
remote relationships that Dassenko and Gentile considered 30
important enough to disclose," id. at 308-09, and suggested that 31
that comparison "strengthened" the court's conclusion that 32
Dassenko and Gentile should have informed the parties of their 33
simultaneous service, id. 34

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

-- 19 of 37 --

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

-- 20 of 37 --

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

-- 21 of 37 --

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

-- 22 of 37 --

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

-- 23 of 37 --

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.
24
as one party's agent). Most recently, in Applied Industrial, we 1
considered the standard for obtaining vacatur based upon 2
nondisclosure. There, we reaffirmed the principle that where 3
"[a]n arbitrator . . . knows of a material relationship with a 4
party" but fails to disclose it, "[a] reasonable person would 5
have to conclude that [the] arbitrator who failed to disclose 6
under such circumstances was partial to one side." Applied 7
Industrial, 492 F.3d at 137; see also, e.g., Lucent Techs. Inc., 8
379 F.3d at 28 (recognizing same principle). 17
9
B. Analysis 10
The district court in the case before us concluded that 11
Dassenko's and Gentile's simultaneous service in the Platinum 12

-- 24 of 37 --

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

-- 25 of 37 --

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").
26
Several courts have identified a variety of factors for 1
use in guiding a district court in the application of the 2
evident-partiality test in cases where a party seeks vacatur of 3
an arbitration award because of an arbitrator's nondisclosure. We 4
find those adopted by the Fourth Circuit helpful: 5
To determine if a party has established 6
[evident] partiality, a court should assess 7
four factors: "(1) the extent and character 8
of the personal interest, pecuniary or 9
otherwise, of the arbitrator in the 10
proceedings; (2) the directness of the 11
relationship between the arbitrator and the 12
party he is alleged to favor; (3) the 13
connection of that relationship to the 14
arbitrator; and (4) the proximity in time 15
between the relationship and the arbitration 16
proceeding." 17
Three S Del., Inc., 492 F.3d at 530 (quoting ANR Coal Co. v. 18
Cogentrix of N.C., Inc., 173 F.3d 493, 500 (4th Cir. 1999), cert. 19
denied, 528 U.S. 877 (1999)). While those factors are useful, we 20
do not view them as mandatory, exclusive or dispositive. 18
21

-- 26 of 37 --

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
27
We conclude that Scandinavian has not met its burden of 1
establishing that Dassenko and Gentile's service in the Platinum 2
Arbitration was indicative of bias in these proceedings so as to 3
constitute a nontrivial conflict of interest. 19 Therefore, the 4
arbitrators' failure to disclose their concurrent service does 5
not require vacatur. 6
First, as a general matter, we do not think that the 7
fact that two arbitrators served together in one arbitration at 8
the same time that they served together in another is, without 9
more, evidence that they were predisposed to favor one party over 10
another in either arbitration. The undisclosed matter here was 11
overlapping arbitral service, not a "material relationship with a 12
party," Applied Industrial, 492 F.3d at 137, such as a family 13
connection or ongoing business arrangement with a party or its 14
law firm -- circumstances in which a reasonable person could 15
reasonably infer a connection between the undisclosed outside 16
relationship and the possibility of bias for or against a 17
particular arbitrating party. We agree with St. Paul that "the 18
mere fact of [such] overlapping arbitral service suggests nothing 19
inherently negative about the impartiality of the arbitrators." 20
20

-- 27 of 37 --

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).
28
Appellants' Reply Br. at 19. And despite the overlap, there is 1
no indication here that either of the arbitrators was predisposed 2
to rule any particular way in the Scandinavian Arbitration as a 3
result of the Platinum Arbitration. 4
Scandinavian, in arguing to the contrary, appears to 5
ask us to infer partiality from the arbitrators' overlapping 6
service because the Award in the St. Paul Arbitration was 7
rendered in St. Paul's favor. But the fact that one party loses 8
at arbitration does not, without more, tend to prove that an 9
arbitrator's failure to disclose some perhaps disclosable 10
information should be interpreted as showing bias against the 11
losing party. We have repeatedly said that adverse rulings alone 12
rarely evidence partiality, whether those adverse rulings are 13
made by arbitrators, see, e.g., Thomas C. Baer, Inc. v. 14
Architectural & Ornamental Iron Workers Local Union No. 580, 813 15
F.2d 562, 565 (2d Cir. 1987), or by judges, see, e.g., Chen v. 16
Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009) 17

-- 28 of 37 --

29
(per curiam) (citing Liteky v. United States, 510 U.S. 540, 555 1
(1994)). 2
Nor do we consider any of the identified similarities 3
between the St. Paul Arbitration and the Platinum Arbitration to 4
suggest bias. The district court was correct in observing that 5
the same witness, Hedges, testified in both proceedings; that the 6
interpretation of stop-loss reinsurance agreements containing 7
"experience account" features was at issue in both; and that past 8
and ongoing business relationships existed between Platinum and 9
its affiliates and St. Paul and its affiliates. See 10
Scandinavian, 732 F. Supp. 2d at 307-08. But the fact that one 11
arbitration resembles another in some respects does not suggest 12
to us that an arbitrator presiding in both is somehow therefore 13
likely to be biased in favor of or against any party. Cf. 14
Liteky, 510 U.S. at 561-62 (Kennedy, J., concurring) (observing 15
that the fact that same judge presides over related cases 16
ordinarily does not suggest that judge is biased). 17
To be sure, as Scandinavian points out, material 18
conflicts of interest need not be direct relationships between 19
arbitrators and parties to the arbitration. As the district 20
court put it, "[a] reasonable person concludes that an arbitrator 21
is partial to one side because the undisclosed relationship is 22
material, not because the material relationship is with a party." 23
Id. at 306. But, in ascertaining whether a relationship is 24
"material" -- or, to use the terminology of Applied Industrial, 25
whether it is "nontrivial" -- we think that a court must focus on 26

-- 29 of 37 --

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
30
the question of how strongly that relationship tends to indicate 1
the possibility of bias in favor of or against one party, and not 2
on how closely that relationship appears to relate to the facts 3
of the arbitration. See Morelite, 748 F.2d at 84 ("[E]vident 4
partiality . . . will be found where a reasonable person would 5
have to conclude that an arbitrator was partial to one party to 6
the arbitration." (internal quotation marks omitted)). In other 7
words, even if a particular relationship might be thought to be 8
relevant "to the arbitration at issue," Scandinavian, 732 F. 9
Supp. 2d at 307, that relationship will nevertheless not 10
constitute a material conflict of interest if it does not itself 11
tend to show that the arbitrator might be predisposed in favor of 12
one (or more) of the parties. As we put it in Applied 13
Industrial, for a relationship to be material, and therefore 14
require disclosure, it must be such that "[a] reasonable person 15
would have to conclude that an arbitrator who failed to disclose 16
[it] . . . was partial to one side." Applied Industrial, 492 17
F.3d at 137. 18
We understand, of course, that Gentile was a party- 19
appointed arbitrator in each arbitration, and that he represented 20
the respective claimants (St. Paul and Platinum) in each. 21 We 21

-- 30 of 37 --

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.
31
also acknowledge the district court's factual findings that 1
Platinum and its affiliates and St. Paul and its affiliates had 2
various past and ongoing business relationships. See 3
Scandinavian, 732 F. Supp. 2d at 301-02. But there is no 4
indication in the record that Gentile was appointed by Platinum 5
at the recommendation of St. Paul, or that Gentile or Dassenko 6
had any special financial or professional interest in ruling in 7
St. Paul's favor as a result of their participation in the 8
Platinum Arbitration. 9
Scandinavian asserts that vacatur is nonetheless 10
warranted because it was misled by Dassenko's and Gentile's 11
repeated assurances to the parties that they understood 12
themselves obligated to make thorough and ongoing disclosures. 13
In light of those assurances and the many opportunities during 14

-- 31 of 37 --

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."
32
the St. Paul Arbitration when the arbitrators' concurrent service 1
in the Platinum Arbitration might have come to mind, Scandinavian 2
argues, "[b]oth arbitrators simply could not have continually 3
failed to see what was right in front of their eyes for so long." 4
Appellee's Br. at 48. The district court, apparently crediting 5
this argument, indicated that in ordering vacatur it relied on 6
the fact that Dassenko and Gentile had informed the parties of 7
many other "less significant or temporally remote relationships." 8
Scandinavian, 732 F. Supp. 2d at 308-09. 9
We conclude that vacatur was not called for. In the 10
first place, we do not think it appropriate to vacate an award 11
solely because an arbitrator fails to consistently live up to his 12
or her announced standards for disclosure, or to conform in every 13
instance to the parties' respective expectations regarding 14
disclosure. 22 The nondisclosure does not by itself constitute 15
evident partiality. The question is whether the facts that were 16

-- 32 of 37 --

33
not disclosed suggest a material conflict of interest. An 1
approach that examined why an arbitrator failed to disclose a 2
relationship would interject added uncertainty and subjectivity 3
into our evident-partiality analysis. See Int'l Bhd. of 4
Teamsters, 170 F.3d at 146 (describing the test for evident 5
partiality as being "whether an objective, disinterested 6
observer" would conclude that the arbitrator was biased (emphasis 7
added)). Such an approach might, moreover, have perverse effects 8
because if it were the rule that vacatur would be warranted for 9
an arbitrator's failure to live up to his or her own particularly 10
punctilious standards of disclosure, arbitrators would have less 11
of an incentive to set a high standard for their disclosures in 12
the first place. 13
Secondly, we reject Scandinavian's assertion that the 14
nondisclosure can only be explained by bias in favor of St. Paul. 15
The record does not indicate why the information was not 16
disclosed, but we do not find it implausible that Dassenko and 17
Gentile labored under the false impression that they had made a 18
disclosure which in fact they had failed to make, particularly in 19
light of the fact that they did disclose (although not by name) 20
the existence of the Scandinavian arbitration in the PMA 21
proceeding. St. Paul suggests that the nondisclosure may have 22
occurred because of "sheer inadvertence, a mistaken belief that 23
they had already disclosed it, or non-materiality." Appellants' 24
Reply Br. at 18. Indeed, Peter Gentile seems to have operated 25
under just such a false impression with respect to another matter 26

-- 33 of 37 --

34
which he failed to disclose until late in the arbitration. In 1
any event, the arbitrators' conduct is not such that a 2
"reasonable person would have to conclude that an arbitrator was 3
partial" to St. Paul. Morelite, 748 F.2d at 84 (emphasis added). 4
We also reject Scandinavian's argument that vacatur is 5
required because the presentation of its arbitration case was 6
disadvantaged by Dassenko's and Gentile's nondisclosure. See, 7
e.g., Appellee's Br. at 44 ("If Scandinavian had known that 8
Dassenko and Gentile had recently heard Hedges defend a contrary 9
[position] in the other arbitration, it could have prepared for 10
and presented Hedges' testimony in the [St. Paul] [A]rbitration 11
differently, or not called him as a witness at all."); see also 12
Scandinavian, 732 F. Supp. 2d at 308 & n.122 (concluding that the 13
nondisclosure "deprived Scandinavian[] of an opportunity to . . . 14
adjust [its] arbitration strategy," id. at 308). The FAA does 15
not bestow on a party the right to receive information about 16
every matter that it might consider important or useful in 17
presenting its case. A party is not entitled to the "'complete 18
and unexpurgated business biograph[ies]'" of the arbitrators whom 19
the parties have selected. Applied Industrial, 492 F.3d at 139 20
(quoting Commonwealth Coatings, 393 U.S. at 151 (White, J., 21
concurring)). 22
Finally, we are not persuaded that other reasons given 23
by the district court for vacating the award require us to 24
conclude that the arbitrators were "evident[ly] partial[]." The 25
district court noted, Dassenko and Gentile "could [have] 26

-- 34 of 37 --

35
receive[d] ex parte information" in the Platinum Arbitration 1
about matters at issue in the St. Paul Arbitration, Scandinavian, 2
732 F. Supp. 2d at 308; and might have been influenced by the 3
"credibility determinations" they made about Hedges, id.; and 4
could have "influence[d] each other's thinking on issues relevant 5
to the [St. Paul] Arbitration," id. But these possibilities do 6
not establish bias. See Trustmark Ins. Co. v. John Hancock Life 7
Ins. Co. (U.S.A.), 631 F.3d 869, 873 (7th Cir. 2011) (arbitrators 8
not disqualified merely because they acquired relevant knowledge 9
in a previous arbitration), cert. denied, 131 S. Ct. 2465 (2011); 10
Int'l Bhd. of Teamsters, 170 F.3d at 147 (evident partiality "may 11
not be based simply on speculation"). Neither do they 12
distinguish this case from any number of others successfully 13
presided over by arbitrators -- or by judges for that matter. 14
To be sure, in this case -- unlike in Applied 15
Industrial -- Dassenko and Gentile plainly "had actual knowledge" 16
of their concurrent service in the Platinum Arbitration. 17
Scandinavian, 732 F. Supp. 2d at 309. Although it would have 18
been far better for them to have disclosed that fact, we do not 19
think disclosure was required to avoid a vacatur of the Award in 20
light of the fact that the relationship did not significantly 21
tend to establish partiality. 22
We do not in any way wish to demean the importance of 23
timely and full disclosure by arbitrators. Disclosure not only 24
enhances the actual and apparent fairness of the arbitral 25
process, but it helps to ensure that that process will be final, 26

-- 35 of 37 --

36
rather than extended by proceedings like this one. We again 1
reiterate Justice White's observation that it is far better for a 2
potential conflict of interest "[to] be disclosed at the outset" 3
than for it to "come to light after the arbitration, when a 4
suspicious or disgruntled party can seize on it as a pretext for 5
invalidating the award." Commonwealth Coatings, 393 U.S. at 151 6
(White, J., concurring); accord Applied Industrial, 492 F.3d at 7
139; Lucent Techs., 379 F.3d at 29; Andros Compania Maritima, 579 8
F.2d at 700. But the better course is not necessarily the only 9
permissible one. 10
Because we agree with St. Paul that the district court 11
erred in vacating the Award in this case, we need not consider 12
its alternative argument on appeal that the district court should 13
not have vacated the arbitrators' interim rulings. 14
III. Confirmation of the Award 15
Under section 9 of the FAA, "a court 'must' confirm an 16
arbitration award 'unless' it is vacated, modified or corrected 17
'as prescribed' in §§ 10 and 11." Hall St. Assocs., L.L.C. v. 18
Mattel, Inc., 552 U.S. 576, 582 (2008). And for petitions 19
brought under the New York Convention, "[t]he court shall confirm 20
the award unless it finds one of the grounds for refusal or 21
deferral of recognition or enforcement of the award specified in 22
the said Convention." 9 U.S.C. § 207; see also Telenor Mobile 23
Commc'ns AS v. Storm LLC, 584 F.3d 396, 405 (2d Cir. 2009) (same, 24
citing section 207). 25

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37
Scandinavian has identified no basis other than the 1
asserted evident partiality for vacating the Award under the FAA 2
or New York Convention. Because we conclude that evident 3
partiality was absent, St. Paul's cross-petition to confirm the 4
Award must be granted. 5
CONCLUSION 6
The judgment of the district court is reversed, and the 7
case is remanded with instructions to the district court to deny 8
Scandinavian's petition to vacate the Award, to grant St. Paul's 9
cross-petition to confirm it, and to enter an amended judgment 10
accordingly. 11

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