Second Circuit’s Old-Fashioned Approach to Evident Partiality of Party-Appointed Arbitrator

U.S. domestic arbitration changed its tradition of non-neutral party-appointed arbitrators. 2004 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes (the 2004 AAA/ABA Code) [1] was a symbolic step toward the international standards which typically require impartial party-appointed arbitrators. Unfortunately, the Second Circuit’s decision, Certain Underwriting Members of Lloyds of London v. Florida, 892 F.3d 501, 510 (2d Cir. 2018), turned to the opposite direction—though in a dictum—when it stated that “[e]xpecting . . . the same level of institutional impartiality applicable to neutrals [of party-appointed arbitrators] would impair the process of self-governing dispute resolution.” The court did not even sufficiently refer to the revised impartiality standards under the 2004 AAA/ABA Code. [2] This old-fashioned approach calls for criticism. [3]U.S. federal courts must neither downplay key guidelines, including ethical rules, nor create confusion in determining “evident partiality” under the Federal Arbitration Act, 9 U.S.C. § 10(a)(2) (2012).

Facts of the Dispute                                                                           

Insurance Company of the Americas (ICA) purchased two reinsurance treaties from certain underwriters of Lloyd’s of London (the Underwriters). Each treaty contains an arbitration clause providing that “[o]ne Arbiter shall be chosen by the Reinsured [ICA], the other by the Reinsurer [the Underwriter], and an Umpire shall be chosen by the two Arbiters before they enter upon arbitration, all of whom shall be active or retired disinterested executive officers of insurance or reinsurance companies or Lloyd’s London Underwriters.” [4] ICA requested coverage from the Underwriters under the treaties, but the Underwriters declined ICA’s claim. In December 2014, ICA demanded arbitration against the Underwriters. Pursuant to the arbitration clause, ICA appointed Alex Campos as its designated arbitrator. At an organizational meeting among the umpire and two party-appointed arbitrators on May 11, 2015, Campos disclaimed any appreciable link to ICA. [5] On October 19, 2015, the arbitration panel issued an award granting ICA’s claim in its entirety.

Campos did not make additional disclosures during the arbitration. However, there were undisclosed dealings between ICA and a human resources firm named Vensure Employee Services (Vensure) of which Campos was the president and CEO. Specifically, ICA and Vensure operated out of the same suite in a business park in Mesa, Arizona. A former director of ICA, John Iorillo, was the CFO of a firm that provided consulting services to Vensure. A director of ICA, Ricardo Rios, was hired as the CFO of Vensure in the summer of 2015. Rios testified as a witness at the arbitration, and Iorillo’s name was mentioned repeatedly.

The Underwriters moved to vacate the award in the District Court for the Southern District of New York. The court granted the motion to vacate on the ground that Campos’s conduct demonstrated evident partiality, rejecting ICA’s contention that evident partiality standards either do not apply or are even more relaxed in the case of party-appointed arbitrators in tripartite industry arbitrations.

Sister Circuit Decisions and the Development of Impartiality Standards

On appeal, the Second Circuit declared that the FAA imposes a heightened burden of proving evident partiality in cases in which the allegedly biased arbitrator was party-appointed. After making a questionable general remark that “party-appointed arbitrators . . . are expected to serve as de facto advocates,” the Second Circuit noted that other sister circuits “distinguish between party-appointed and neutral arbitrators in considering evident partiality,” and “this distinction is salient in the reinsurance industry, where an arbitrator’s professional acuity is valued over stringent impartiality.” [6]

Since the Lloyds court cited sister circuit cases involving two non-reinsurance arbitrations, [7] the court is possibly of the view that the distinction between party-appointed and neutral arbitrators in considering evident partiality has broad application beyond the reinsurance industry. Both cases, however, do not support this distinction. This is especially true of the Eleventh Circuit’s decision, Sunkist Soft Drinks, which is even outdated. First, a former version of AAA rules bound the parties in Sunkist Soft Drinks, and the court referred to the Canon VII of the 1977 AAA/ABA Code. [8] Second, the AAA Commercial Arbitration Rules changed the presumption of party-appointed arbitrators’ neutrality in 2003. [9] Third, Canon IX of the revised 2004 AAA/ABA Code stipulates that “all three arbitrators are presumed to be neutral and are expected to observe the same standards as the third arbitrator.” [10] In view of all these differences, under the current rules, it is unlikely that the Eleventh Circuit will maintain its logic in Sunkist Soft Drinks regarding the distinction. Thus, Sunkist Soft Drinks is not a good authority to support the Second Circuit’s contention. [11]

Does the Qualification Clause of Three Disinterested Arbitrators Expect a Non-Neutral Party-Appointed Arbitrator?

The Second Circuit introduced a view that “[p]arties are free to choose for themselves to what lengths they will go in quest of impartiality [of arbitrators].” [12] This view dominates in the U.S. [13] Since ICA and the Underwriters did not agree on rules that apply to the matter of impartiality, [14] the key issue of the Lloyds case should have been whether the parties still intended to appoint non-neutral party-appointed arbitrators despite agreeing to a contractual qualification clause directing the appointment of three disinterested arbitrators. The Lloyds court, however, did not address this issue properly in two ways. First, as mentioned, the court attempted to base its conclusion on the historical notion of non-neutral party-appointed arbitrators, misapplying the sister circuit decisions. Second, the court did not fully articulate the meaning of disinterestedness.

As to the latter, the Second Circuit could have made a better effort to clarify the decision. In interpreting the agreement between the litigants, the Lloyds court referred to Paragraph 2.3 of ARIAS-U.S. Practical Guide to Reinsurance Arbitration Procedure (ARIAS-U.S. Practical Guide) (2004) with a focus on a portion that states “[t]he parties and Panel should interpret arbitration clauses requiring ‘disinterested’ arbitrators to mean that arbitrators may have no financial interest in the arbitration outcome and are not under any party’s control.” [15] The court, however, did not cite further parts of the Guide. To tackle the key issue, the court could have referred to Comment A on Paragraph 2.3 of the Guide which presumed that “[a]bsent specific contractual language to the contrary, it is generally understood in the industry that party-appointed arbitrators can be initially predisposed,” since this portion supports the court’s conclusion in the context of U.S.-seated arbitrations in the reinsurance industry. Certainly, as this presumption contradicts the position of the 2004 AAA/ABA Code, one expects the court to explain that referring to industry specific guidelines [16] is more proper than referring to the 2004 AAA/ABA Code. [17] In the Lloyds decision, however, an analysis of the relationship between ARIAS-U.S. Practical Guide and the 2004 AAA/ABA Code is missing. This makes the basis of the Second Circuit’s decision less stable. [18]

Prospects and Takeaways

In its 1984 Morelite decision, the Second Circuit took the standard of whether “a reasonable person would have to conclude that the arbitrator [is] partial.”  [19] The Lloyds court, however, did not apply the Morelite standard to party-appointed arbitrators’ evident partiality. Instead, the court required heightened burden of proof. [20] While the court remanded the case, it did not articulate how the standard was heightened. The court “decline[d] to catalogue all ‘material relationship[s]’ that may bear upon the service of a party-appointed arbitrator,” and enunciated only two “baseline limits” to which a party-appointed arbitrator is subject—disinterestedness and prejudicial impact on the award. [21]Thus, even if parties agreed on party-appointed arbitrators’ non-neutrality, one cannot accurately predict how the Second Circuit will decide evident partiality in future cases.

Conversely, the following two observations are relatively definite. First, it is unlikely that the Lloyds court’s reasoning for characterizing party-appointed arbitrators’ evident partiality standards will extend to non-reinsurance industry arbitrations. Second, courts will not look to the Lloyds decision in determining the matter of arbitrators’ impartiality when parties agree on rules that govern the matter, e.g., the international or domestic arbitration rules of ICC, LCIA, AAA (including ICDR), JAMS, and CPR. [22]

In a broader context, the evident partiality standards involve greater uncertainty. As the U.S. Supreme Court has neither tackled evident partiality since Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 147–50 (1968) nor settled the standards for evident partiality, the federal circuits vary on this issue. [23] The Lloyds decision addressed evident partiality standards based on both statutory interpretation (by referring to the historical notion of non-neutral party-appointed arbitrators and sister circuit decisions) and contractual interpretation (by introducing the view that parties can waive arbitrator’s impartiality to some extent [24]). This structure of the decision prompts questions on what legal sources and standards must be considered in determining evident partiality, whether the parties intended to waive impartiality, and how these standards must be applied. As the Second Circuit took into account ARIAS-U.S. Practical Guide in interpreting an agreement, it is worth studying why courts refer to such guidelines despite their non-binding status [25] and examining how agreeing on arbitrators’ partiality deviates from multiple norms. [26]

Kei Kajiwara

Kei Kajiwara is an LLM Candidate, Hauser Global Scholar and Starr Foundation Global Law School Scholar in the International Business Regulation, Litigation and Arbitration Program at NYU School of Law. He earned his JD cum laude in 2012 from the University of Tokyo School of Law, after which he practiced law in the dispute resolution group of Nagashima Ohno & Tsunematsu in Tokyo.


[1] The 2004 AAA/ABA Code “establishes a presumption of neutrality for all arbitrators, including party-appointed arbitrators.” The 2004 AAA/ABA Code, Note on Neutrality. The 1977 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes (the “1977 AAA/ABA Code”), the former version of the 2004 AAA/ABA Code, provided that “party-appointed arbitrators should be considered nonneutrals unless both parties inform the arbitrators that all three arbitrators are to be neutral or unless the contract, the applicable arbitration rules, or any governing law requires that all three arbitrators be neutral.” The 1977 AAA/ABA Code, Canon VII, Introductory Note, X Y.B. Comm. Arb. 131.

[2] The Second Circuit noted disclosure requirements of the 2004 AAA/ABA Code. See 892 F.3d at 506 n. 2. The court, however, did not refer to the 2004 AAA/ABA Code in explaining why it took a different standard from its 1984 decision as to party-appointed arbitrators. See infra note 19.

[3] For one of the first critical analyses of this case, see John Fellas, Evident Partiality and the Party-Appointed Arbitrator, N.Y.L.J., June 28, 2018, available at https://files.hugheshubbard.com/files/Evident-Partiality-and-the-Party-Appointed-Arbitrator.pdf.

[4] Certain Underwriting Members at Lloyd’s of London v. Ins. Co. of Am., 2017 WL 5508781, at 3 (S.D.N.Y. Mar. 31, 2017) (emphasis added).

[5] At the organizational meeting, a participant mentioned “the ARIAS rules.” 2017 WL 5508781, at 10. This does not mean that the ARIAS rules or guidelines were applicable. In fact, both Lloyds courts (the district court and the Second Circuit) did not apply any of them to the case.

[6] 892 F.3d at 508, 509.

[7] Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 552 (8th Cir. 2007); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 759 (11th Cir. 1993).

[8] See supra note 1.

[9] See R-12(b) of the Jan. 1, 2003 amended version and R-12 (b) of the July 1, 2003 amended version, https://www.adr.org/ArchiveRules (last visited Mar. 3, 2019).

[10] According to the district court in Lloyds, ICA purchased insurance treaties “[b]eginning in December 31, 2004” after the 2004 AAA/ABA Code became effective. See 2017 WL 5508781, at 1.

[11] In Winfrey, the other non-reinsurance case, “the parties signed an addendum to the contract that also contains no neutrality requirement for the party-appointed arbitrators.” The Winfrey court further noted that “it is industry custom that party arbitrators are frequently not required or expected to be neutral for ruling on disputes.” 495 F.3d at 552 (involving poultry growers and a food company as disputing parties). Considering both parties’ agreement in the case and the specific industry custom, Winfrey does not support the Lloyds decision’s reasoning either.

[12] See 892 F.3d at 508 (citing Sphere Drake Ins. v. All American Life Ins., 307 F.3d 617, 620 (7th Cir. 2002)).

[13] Institutional rules support this position. See, e.g., 2013 AAA Commercial Arbitration Rules, Rule 13(b); the 2004 AAA/ABA Code, Note on Neutrality, Canon IX. For comments on this position’s rationale and other treatments in foreign jurisdictions, see Gary B. Born, International Commercial Arbitration 1805–07, 1815–18 (2d ed. 2014).

[14] In addition to 2013 AAA Commercial Arbitration Rules and the 2004 AAA/ABA Code, see, e.g., ICDR International Arbitration Rules, Article 13(1) (2014); ICC Arbitration Rules, Article 11(1) (2017); LCIA Arbitration Rules, Article 5.3 (2014); CPR Rules for Administered International Disputes, Rule 7.1 (2019); JAMS Comprehensive Arbitration Rules and Procedures, Rule 7(c) (2014); CPR Administered Arbitration Rules, Rule 7.1 (2019); and ARIAS-U.S. Rules for the Resolution of U.S. Insurance and Reinsurance Disputes, Rules 2.3, 2.4, and 6.1 (2014).

[15] The Lloyds court cites Trustmark Ins. Co. v. John Hancock Life Ins. Co., 631 F.3d 869, 872–73 (7th Cir. 2011), in which the Seventh Circuit also referred to Paragraph 2.3 of ARIAS-U.S. Practical Guide to support its contractual interpretation. See 892 F.3d at 510.

[16] Considering developments after the Lloyds case as well, currently, industry-specific guidelines that support the Lloyds court’s conclusion include ARIAS-U.S. Code of Conduct, Canon II, Comments (2017) (stating that “party-appointed arbitrators may be initially predisposed toward the position of the party who appointed them (unless prohibited by the contract)”); and ARIAS-U.S. Neutral Selection Procedure (intending to “minimize the level of perceived bias inherent in utilizing party-appointed arbitrators”), https://www.arias-us.org/arias-us-dispute-resolution-process/practical-guide/neutral-selection/ (last visited Mar. 3, 2019).

[17] In this regard, Barry R. Ostrager & Mary Kay Vyskocil, Modern Reinsurance Law and Practice 538 (3d ed. 2014), one of the most influential authorities, concludes that, in the reinsurance industry, despite the 2004 AAA/ABA Code, party-appointed arbitrators are not required to be completely neutral (i.e., they can be predisposed to the positions of the parties who appointed them) unless otherwise agreed. A possible explanation for this view is that industry-specific guidelines are more tailored to parties’ specific situation. Ostrager & Vyskocil, however, refers to Comment to Canon 1 of the 2004 AAA/ABA Code on this point. See id. The Comment itself does not directly support their view, since the Comment only allows arbitrators to have views on certain general issues. That arbitrators have views on certain general issues does not mean they can be predisposed. The 2004 AAA/ABA Code prohibits party-appointed arbitrators to be predisposed unless they are excused by Canon X. See the 2004 AAA/ABA Code, Canon IX B.

[18] In Lloyds, as Fellas supra note 3, at 1 pointed out, the litigants might not have emphasized the 2004 AAA/ABA Code. Even in the insurance industry, some courts take into account the 2004 AAA/ABA Code. Borst v. Allstate Ins. Co., 291 Wis. 2d 361, 375 (2006), held, in a dictum, that the court “adopt[s] a presumption of impartiality among all arbitrators, whether named by the parties or not” under a state statute, explaining that its view is in line with the 2004 AAA/ABA Code.

[19] Morelite Const. Corp. v. New York City Dist. Council Carpenters Ben. Funds, 748 F.2d 79, 84 (2d Cir. 1984).

[20] The Second Circuit noted that “the district court’s sound findings on Campos’s improprieties are substantial under the traditional Morelite test.” 892 F.3d at 509.

[21] See 892 F.3d at 510–11. The Lloyds court explains that “disinterestedness” would be breached if the party-appointed arbitrator had a financial or personal interest in the outcome. This statement is based on a minimum consensus of disinterestedness according to ARIAS-U.S. Practical Guide, Paragraph 2.3. “Prejudicial impact on the award” is a signpost that, according to the Eighth Circuit, leads to a vacatur even in a case in which parties’ agreement authorized the selection of a party-appointed arbitrator who is “an officer, employee or shareholder of, attorney or auditor to, or otherwise interested in, either of the Parties or the matter to be arbitrated.” Delta Mine Holding v. AFC Coal Properties, 280 F.3d 815, 817, 821–22 (8th Cir. 2001).

[22] See supra note 14. Parties may also agree that guidelines, such as the 2004 AAA/ABA Code and ARIAS-U.S. Practical Guide, govern the matter. In a hypothetical scenario in which parties submit their case to AAA under 2013 AAA Commercial Arbitration Rules while they agree on ARIAS-U.S. Rules for the Resolution of U.S. Insurance and Reinsurance Disputes or ARIAS-U.S. Practical Guide, one might question whether there is a specific agreement regarding party-appointed arbitrators’ non-neutrality that overrides the AAA rules’ neutrality presumption. Especially, if a party raises an objection under Rule 18(c) to a party-appointed arbitrator’s qualification during such proceedings, it is hard to imagine that AAA disregards its own rules’ neutrality presumption under Rule 18(a) or Cannon IX of the 2004 AAA/ABA Code in ruling on the objection.

[23] See Born supra note 13, at 1768.

[24] See supra note 12.

[25] A plurality in Commonwealth Coatings Corp., 393 U.S. at 149, described non-governing AAA’s rules regarding arbitrators’ qualification and disclosure as “highly significant.” Referring to this plurality opinion, some courts look to the 2004 AAA/ABA Code in formulating an evident partiality standard that applies to a case. See, e.g., New Regency Prods., Inc. v. Nippon Herald Films, Inc., 501 F.3d 1101, 1109–10 (9th Cir. 2007); Positive Software Solutions, Inc. v. New Century Mortg. Corp., 436 F.3d 495, 503 (5th Cir. 2006), rev’d en banc, 476 F.3d 278 (5th Cir. 2007). These decisions appear to think that the 2004 AAA/ABA Code is relevant to statutory interpretation of the §10(a)(2) of the FAA as opposed to contractual interpretation.

[26] In the context of international arbitration, commentators discuss various legal instruments. One of them relates to arbitrators’ inherent powers, which may include “those necessary to ensure independent and impartial adjudication.” See Andrea K. Bjorklund & Jonathan Brosseau, Sources of Inherent Powers, in Inherent Powers of Arbitrators 1, 3 (Franco Ferrari & Friedrich Rosenfeld eds., 2018). Another publication comments on ethical rules, namely, the New York Rules of Professional Conduct and the 2004 AAA/ABA Code, in studying issues related to parties’ advance waivers of potential conflicts of interest, including standards of impartiality. See International Commercial Disputes Committee (Joseph E. Neuhaus, Chair), Advance Waivers of Arbitrator Conflicts of Interest in International Commercial Arbitrations Seated in New York, 27 Am. Rev. Int’l Arb. 21, 27–28, 34–35 (2016).

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