14-2840-cv
Odyssey Reins. Co. v. Certain Underwriters at Lloyd’s London Syndicate 53

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th
day of August, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                    CHRISTOPHER F. DRONEY,
                                 Circuit Judges.


ODYSSEY REINSURANCE COMPANY,

                    Petitioner-Appellant,

                              v.                                                      No. 14-2840-cv

CERTAIN UNDERWRITERS AT LLOYD’S LONDON
SYNDICATE 53, RELIASTAR REINSURANCE GROUP (DK),
a division of Reliastar Life Insurance Company,

                    Respondents-Appellees.


FOR PETITIONER-APPELLANT:                                              DAVID C. FREDERICK (Stephen M. Kennedy,
                                                                       Linsey M. Routledge, Clyde & Co US LLP,
                                                                       New York, NY, on the brief), Kellogg, Huber,
                                                                       Hansen, Todd, Evans & Figel, PLLC,
                                                                       Washington, DC.

FOR RESPONDENTS-APPELLEES:                                             WILLIAM A. MAHER (Michael C. Ledley, on the
                                                                       brief), Wollmuth Maher & Deutsch LLP, New
                                                                       York, NY.

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     Appeal from a judgment of the United States District Court for the Southern District of
New York (Paul A. Crotty, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is VACATED, and the
cause is REMANDED with instructions that the District Court appoint an arbitration umpire
pursuant to Section 5 of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 5.

       Petitioner Odyssey Reinsurance Company (“Odyssey”) appeals from the District Court’s
June 30, 2014 judgment denying its petition to appoint an arbitration umpire pursuant to 9 U.S.C.
§ 5. We assume the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.

         We review de novo a district court’s determinations of law, such as the proper interpretation
of a statute, Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006), and we review for clear error its factual
findings, Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d Cir. 2012).

         Upon review of the record and relevant law, we conclude that the District Court improperly
denied Odyssey’s petition on the mistaken belief that it lacked the statutory authority under the FAA
to resolve the parties’ deadlock over the appointment of an umpire. When an arbitration agreement
provides “a method of naming or appointing . . . an umpire,” Section 5 of the FAA mandates that
“upon the application of either party to the controversy the court shall designate and appoint an . . .
umpire” if either (1) “any party [to the agreement] shall fail to avail himself of such method,” or (2)
“for any other reason there shall be a lapse in the naming of an . . . umpire.” 9 U.S.C. § 5 (emphasis
added). We have previously held that the “lapse” referred to in Section 5 is “a lapse in time in the
naming of the arbitrator or in the filling of a vacancy on a panel of arbitrators, or some other
mechanical breakdown in the arbitrator selection process,” including a “deadlock” in the naming of
an arbitrator. In re Salomon Inc. S’holders’ Derivative Litig., 68 F.3d 554, 560 (2d Cir. 1995) (citations and
internal quotation marks omitted); see also Stop & Shop Supermarket Co. v. United Food & Commercial
Workers Union Local 342, 246 F. App’x 7, 11 (2d Cir. 2007) (“Each party had designated its own pick,
whom the other side refused to recognize as the legitimate arbitrator. Such a deadlock satisfies FAA
§ 5’s requirement of a ‘lapse in the naming of an arbitrator.’”). Accordingly, the District Court had
not only the authority but the obligation to appoint an umpire to correct a breakdown in the umpire
selection process.

       As to this point, the District Court conclusorily stated that “[t]here has not been a
breakdown in the process that justifies court intervention.” We disagree. As the District Court
recognized, Odyssey continues to contest the qualifications of two of respondents’ candidates.1

1         The District Court relied on Michaels v. Mariforum Shipping, S.A., 624 F.2d 411 (2d Cir. 1980), for the proposition
that “a district court cannot entertain an attack upon the qualifications or partiality of arbitrators until after the
conclusion of the arbitration and the rendition of an award.” Id. at 414 n.4. In Michaels, the petitioner sought to challenge

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Indeed, the record demonstrates that the parties sharply dispute the meaning of various terms in the
parties’ arbitration agreements, resulting in a deadlock over whether certain candidates for umpire
are qualified and causing Odyssey to refuse to proceed to the next phase of the umpire selection
process. And, although respondents proposed additional candidates even after Odyssey filed its
petition in the District Court, they still assumed in their most recent proposals that one of the
disputed candidates would remain on their list—a position Odyssey is unwilling to accept. This
deadlock has caused a “lapse in the naming of an . . . umpire,” 9 U.S.C. § 5; see In re Salomon, 68 F.3d
at 560, and has long delayed the alternative dispute resolution process—the precise situation Section
5 was designed to address, see BP Expl. Libya Ltd. v. ExxonMobil Libya Ltd., 689 F.3d 481, 493–94
(5th Cir. 2012) (“Congress sought, in enacting § 5, to cure indefinite delay in arbitration proceedings
based on disagreement over the appointment of arbitrators by providing parties with access to a
neutral forum to correct such failures.”). Accordingly, Section 5 requires the District Court to
designate and appoint an umpire.2

        For the reasons stated above, we VACATE the District Court’s June 30, 2014 judgment and
REMAND with instructions that the District Court appoint an arbitration umpire pursuant to 9
U.S.C. § 5.


                                                                    FOR THE COURT:
                                                                    Catherine O’Hagan Wolfe, Clerk




an interim arbitration award under Section 10 of the FAA, which provides for vacatur of an arbitral award where, inter
alia, “the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award
upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). The parties in this case disagree over whether
Michaels’s holding extends to challenges brought under Section 5. Because the lapse in the umpire selection process
requires the District Court to intervene and appoint the umpire in any event, we need not reach the question of whether,
and under what circumstances, a district court might be empowered to review candidates’ qualifications prior to
arbitration proceedings.
2           Odyssey is not entitled, however, to the full measure of relief sought in its petition. Specifically, nothing in the
text of Section 5 compels the District Court to select the umpire from Odyssey’s list of candidates, though it of course
retains the discretion to do so. We further note that, to the extent the District Court’s duty to appoint an umpire
necessitates at least an implicit ruling on that individual’s qualifications to serve, such consideration is appropriate insofar
as it is incidental to the District Court’s task under Section 5. The District Court’s authority in this regard is distinct from
the question of whether it could have entertained an independent, party-initiated challenge to the qualifications of a
specific umpire candidate.

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