     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-


                                     2
 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

                                        3
 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

                                        4
 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.

                                      5
 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.


                                       6
 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.


                                       7
 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-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
 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.


                                       9
 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.

                                       10
 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.




                                     11
 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.

                                     12
 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).

                                     13
 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.

                                          14
 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.


                                      15
 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.


                                       16
 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.

                                     17
 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.


                                      18
 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




                                        19
 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.

                                        20
 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

                                       21
 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

                                       22
 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

                                     23
 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.

                                     24
 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).

                                       25
 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").


                                     26
 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

                                      27
 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).

                                      28
 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

                                       29
 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

                                     30
 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.


                                    31
 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."

                                      32
 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

                                     33
 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]

                                     34
 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,

                                     35
 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).



                                       36
 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.




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