Grupo Unidos por el Canal, S.A., et al. v. Autoridad del Canal de Panama

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14408
____________________
GRUPO UNIDOS POR EL CANAL, S.A.,
SACYR, S.A.,
WEBUILD, S.P.A.,
JAN DE NUL, N.V.,
Plaintiffs-Appellants,
versus
AUTORIDAD DEL CANAL DE PANAMA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-14408
D.C. Docket No. 1:20-cv-24867-RNS
____________________
Before W ILLIAM PRYOR , Chief Judge, and H ULL , and MARCUS, Cir-
cuit Judges.
MARCUS, Circuit Judge:
This appeal requires us to decide whether the losing party to
an international arbitration can obtain a vacatur of the award be-
cause the arbitrators failed to disclose their involvement in unre-
lated arbitrations. After Grupo Unidos por el Canal, S.A., received
two adverse awards amounting to more than a quarter-billion dol-
lars in an arbitration arising out of its construction work on the
Panama Canal, Grupo Unidos sought wide-ranging disclosures
from each of the three members of the panel pertaining to possible
bias. Each arbitrator disclosed for the first time that he had served
on panels in other, unrelated arbitrations in which an arbitrator or
counsel involved in Grupo Unidos’s arbitration also participated.
Following the disclosures of the new information, Grupo
Unidos challenged the impartiality of the arbitrators before the In-
ternational Court of Arbitration (“ICA”) of the International
Chamber of Commerce. The ICA agreed that some arbitrators
failed to make a few disclosures but, notably, did not find any basis
for removal and rejected Grupo Unidos’s challenges on the merits.
Thereafter, Grupo Unidos moved -- unsuccessfully -- for the vaca-
tur of the awards in the United States District Court for the South-
ern District of Florida. Autoridad del Canal de Panama, in turn,
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21-14408 Opinion of the Court 3
cross-moved for confirmation of the awards, which the district
court granted.
Grupo Unidos timely appealed this decision in our Court,
arguing that the awards should either be vacated or not confirmed
under three different provisions of Article V of the New York Con-
vention. But, after oral argument, this Court, sitting
en banc, held
that Chapter 1 of the Federal Arbitration Act -- not Article V of the
New York Convention -- provides the proper grounds for vacatur
of international arbitration awards where the New York Conven-
tion governs and the United States is the primary jurisdiction.
Cor-
poración AIC, SA v. Hidroeléctrica Santa Rita S.A., 66 F.4th 876,
880 (11th Cir. 2023) (en banc). Thus, the questions for us are
whether the two arbitral awards at issue in this case should be va-
cated under Chapter 1 of the Federal Arbitration Act or not con-
firmed under Article V of the New York Convention.
Because we agree with the International Court of Arbitra-
tion and the district court that Grupo Unidos has presented nothing
that comes near the high threshold required for vacatur, we affirm
the denial of vacatur and the confirmation of the awards.
I.
A.
Grupo Unidos, an incorporated consortium of European
companies (collectively “Grupo Unidos”), won a multibillion-dol-
lar bid to design and construct a new set of locks to expand the
Panama Canal. Construction began in 2009, and the consortium
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4 Opinion of the Court 21-14408
planned to finish its work by October 2014. But after complications
caused progress to be “severely delayed and disrupted,” Grupo
Unidos did not complete construction until over twenty months
past the deadline. Liability disputes soon followed. As of last
count, the parties had entered into seven arbitrations; this appeal
concerns one of them -- the Panama 1 Arbitration, where Grupo
Unidos brought several contractual claims against the canal author-
ity, Autoridad del Canal de Panama.
Grupo Unidos’s contract with the canal authority required
that any disputes be resolved through arbitration in Miami, Florida,
under the Rules of Arbitration of the International Chamber of
Commerce (“ICC Rules”). Pursuant to the ICC Rules, both parties
nominate one arbitrator for confirmation by the ICA. ICC Rules
arts. 12(4), 13. Then, the ICA appoints a president of the tribunal,
unless the parties agree upon a different procedure.
Id. arts. 12(5),
13.
In March 2015, Autoridad del Canal nominated Dr. Robert
Gaitskell, an engineer and a lawyer who specializes in construction
cases. The next month, Grupo Unidos nominated Claus von
Wobeser, a lawyer and the former president of the Mexican chap-
ter of the ICC. The ICA confirmed both men in July 2015. The
parties agreed on their own procedure to appoint a president,
which led to the nomination of Pierre-Yves Gunter, a lawyer who
heads the international arbitration group at a Swiss firm. The ICA
confirmed him, too, in April 2016. All three arbitrators had consid-
erable experience in international arbitration, collectively boasting
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21-14408 Opinion of the Court 5
more than 500 arbitrations over the course of their combined ca-
reers, and each bringing relevant expertise to this construction con-
tract dispute.
After confirmation, and with the panel all set, the ICC Rules
required each arbitrator to submit “a statement of acceptance,
availability, impartiality and independence,” including “any facts or
circumstances which might be of such a nature as to call into ques-
tion the arbitrator’s independence in the eyes of the parties” or
“could give rise to reasonable doubts as to the arbitrator’s impar-
tiality.”
Id. art. 11(2)–(3). Accordingly, each of the three arbitrators
submitted a form entitled “ICC Arbitrator Statement Acceptance,
Availability, Impartiality and Independence.”
Gaitskell accepted his appointment “with disclosure.” He
submitted a statement of impartiality in conformity with the ICC
Rules. He also noted that, “[a]s the parties [were] aware, [he was]
already a co-arbitrator in [an] associated case,” which was one of
the several other arbitrations over the canal. And he disclosed that
he was an arbitrator in twenty-two pending proceedings, eight as a
sole arbitrator or tribunal chair and fourteen as a co-arbitrator.
Von Wobeser checked off an identical statement of impar-
tiality. In his “[a]nnex” to the statement, he also “confirm[ed] that
there [were] no circumstances which could lead . . . any of the par-
ties in this arbitration to question [his] independence or impartial-
ity of judgement in this case” and that he had “not had any profes-
sional, work relationship or any other nature with the parties to
this arbitration.” He acknowledged that “[b]oth . . . counsel in this
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6 Opinion of the Court 21-14408
arbitration are important law firms active in international arbitra-
tion and therefore [he had] and ha[s] professional relationship[s]
with both law firms,” and that he “was appointed by Panama” in
another international arbitration “which ha[d] already concluded.”
He reassured the parties that none of these circumstances “in any
way affect [his] impartiality of judgement in the present arbitra-
tion.” Finally, he reported that he was taking part in fourteen pend-
ing arbitrations: one as a sole arbitrator or tribunal chair, seven as
a co-arbitrator, and six as counsel.
Gunter submitted two statements. In each, he indicated that
he had “[n]othing to disclose,” and ticked a box confirming the fol-
lowing statement:
I am impartial and independent and intend to remain
so. To the best of my knowledge, and having made
due enquiry, there are no facts or circumstances, past
or present, that I should disclose because they might
be of such a nature as to call into question my inde-
pendence in the eyes of any of the parties and no cir-
cumstances that could give rise to reasonable doubts
as to my impartiality.
He also noted that he was involved in twenty pending arbitrations
-- eight as a sole arbitrator or tribunal chair, seven as a co-arbitrator,
and five as counsel -- and two pending court litigations as counsel.
At that time, neither party requested any additional information
from any of the three arbitrators.
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21-14408 Opinion of the Court 7
Over the next five years, the arbitration took place. The pro-
ceedings included over 3,500 pages of pleadings; 78 fact witnesses;
63 expert witnesses; over 3,500 exhibits; a 20-day merits hearing;
and around 1,290 pages of post-hearing briefs. On September 21,
2020, the tribunal issued a Partial Award, which addressed liability
and the main damages determinations. The Partial Award dis-
missed most of Grupo Unidos’s claims but awarded it
$26,838,878.20. Meanwhile, the tribunal awarded Autoridad del
Canal $265,299,500.00, resulting in a net win of $238,460,621.80
plus interest.
Three weeks after the Partial Award was rendered, Grupo
Unidos began to question the impartiality of the arbitrators. On
October 15, 2020 -- for the first time since the arbitration began five
years earlier -- Grupo Unidos asked for additional disclosures from
each of the arbitrators of “any facts or circumstances that may af-
fect [the arbitrators’] independence in the eyes of any of the Parties
or that could give rise to reasonable doubts as to their impartiality.”
More specifically, it asked each of them to describe the relation-
ships amongst and between the arbitrators, and with other arbitra-
tors in related arbitration matters between the parties, and with the
parties’ counsel in any related or unrelated and pending or closed
arbitrations.
Gunter, writing for the tribunal, responded that these re-
quests were “different and much broader than” the examples given
in the ICC Note to Parties and Arbitral Tribunals on the Conduct
of the Arbitration. Nevertheless, each member of the tribunal
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8 Opinion of the Court 21-14408
provided additional disclosures. Gunter wrote that he had no dis-
closures “pursuant to the applicable rules as [he] under[stood]
them,” but offered some additional disclosures based on Grupo
Unidos’s request that went “beyond [his] disclosure obligations.”
Von Wobeser followed suit with a few additional disclosures but
“reaffirm[ed] that there are no circumstances that could lead any of
the Parties in this arbitration to question [his] independence or im-
partiality of judgment in this case.” Gaitskell offered disclosures of
his own, also denying any improper relationships.
Dissatisfied with these additional disclosures, Grupo Unidos
sought more, this time asking for information on any relationships
between Gunter’s firm and the parties since 2013 in any unrelated
matters, and the process that led to Gunter’s and Gaitskell’s ap-
pointments in other arbitrations. The arbitrators once again re-
sponded, providing still more contacts between themselves and the
parties.
Four disclosures made during these inquiries are relevant to
this appeal. First, while the Panama 1 Arbitration was pending,
Gaitskell served as an arbitrator in an unrelated arbitration in
which Gaitskell and his co-arbitrator nominated (and the ICA con-
firmed) Gunter to serve as tribunal president. That arbitration in-
volved entirely different counsel and different parties. Second,
while the Panama 1 Arbitration was ongoing, von Wobeser served
as an arbitrator in an unrelated arbitration with a co-arbitrator An-
dres Jana, who serves as one of Autoridad del Canal’s attorneys in
the instant arbitration. Third, several years before the Panama 1
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21-14408 Opinion of the Court 9
Arbitration began, Gaitskell served as an arbitrator in an unrelated
arbitration with another co-arbitrator James Loftis, also one of Au-
toridad del Canal’s attorneys. Fourth, since 2016, Gaitskell has
been serving as an arbitrator in an unrelated arbitration in which a
different party is represented by Manus McMullan, another of Au-
toridad del Canal’s attorneys in the Panama 1 Arbitration.
Prior to the issuance of a Final Award, Grupo Unidos filed
an application with the ICA seeking the removal of each of the tri-
bunal members based on three of these four disclosures and other,
similar pieces of information.
See ICC Rules art. 14. Grupo Unidos
argued that “all three members of the Tribunal . . . withheld im-
portant connections” that were “highly problematic” and that
brought their neutrality into question. After weeks of proceedings,
including written submissions and arguments, the ICA found that
there was no conflict warranting disqualification, concluding that
there was no merit in any of Grupo Unidos’s challenges. The ICA
did observe that Gaitskell should have disclosed his arbitration
where McMullan appeared, and that von Wobeser should have dis-
closed his arbitration when he was serving with Jana. But none of
these facts led it to question the arbitrators’ independence or im-
partiality, and the ICA rejected Grupo Unidos’s challenges.
Having survived an attempt to disqualify each of its mem-
bers, the tribunal issued a Final Award on February 17, 2021. The
award addressed the remaining issues of liability and the main dam-
ages determination, ultimately resulting in a final award of some
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10 Opinion of the Court 21-14408
$285 million for Autoridad del Canal.1 Grupo Unidos has since
paid the damages in full.
On November 25, 2020, while its challenge to the arbitrators
was still pending with the ICA, Grupo Unidos moved to vacate the
Partial Award in the Southern District of Florida. A few months
later, on April 19, 2021, Grupo Unidos moved to vacate the Final
Award in a separate action. Grupo Unidos made the same basic
argument that the arbitrators had evinced evident partiality, assert-
ing that the arbitrators’ nondisclosures implicated three defenses to
the enforcement of the award under the New York Convention,
the agreement that governs international arbitration that the
United States has joined and is codified in Chapter 2 of the Federal
Arbitration Act (“FAA”).
See 9 U.S.C. § 201
et seq.;
see also
Compl.,
Grupo Unidos por el Canal, S.A. v. Autoridad Del Canal
De Panama, No. 21-cv-21509 (S.D. Fla. Apr. 19, 2021). Specifically,
Grupo Unidos pointed to Articles V(2)(b), V(1)(d), and V(1)(b) of
the New York Convention, provisions that protect the losing party
from the enforcement of an international arbitral award if, respec-
tively, enforcement “would be contrary to the public policy” of the
United States, the “arbitral procedure was not in accordance with
1 The increase in amount due to the canal authority from the Partial Award
to the Final Award came from a few lingering merits claims undisposed of at
the Partial Award-stage, as well as costs due to the canal authority having pre-
vailed on most claims.
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21-14408 Opinion of the Court 11
the agreement of the parties,” or the party was “unable to present
his case.”
See New York Convention arts. V(1)(b), V(1)(d), V(2)(b).
The district court consolidated both cases and directed the
parties to file a consolidated motion to vacate and a consolidated
cross-motion to confirm the awards. The district court found that
none of the three New York Convention defenses applied to the
awards, and it concluded that Grupo Unidos’s arguments “de-
pend[ed] on multiple speculative assumptions, each assuming the
worst in [the arbitrators’] character,” and that “[n]o reasonable per-
son would follow [Grupo Unidos] down this conspiratorial web.”
Thus, the court denied Grupo Unidos’s motion to vacate and
granted Autoridad del Canal’s cross-motion to confirm the awards.
B.
Prior to this Court’s recent
en banc opinion in
Corporación
AIC, our case law had long held that international arbitral awards
rendered by tribunals seated in the United States were subject to
vacatur on the grounds found in Article V of the New York Con-
vention.
Corporación AIC overruled our prior case law, ruling in-
stead that “in a New York Convention case where the arbitration
is seated in the United States, or where United States law governs
the conduct of the arbitration, Chapter 1 of the FAA provides the
grounds for vacatur of an arbitral award.” 66 F.4th at 890.
It is undisputed that this case falls under the New York Con-
vention because the awards arose out of a commercial relationship
among parties that are not domiciled in the United States; that this
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12 Opinion of the Court 21-14408
arbitration was seated in Miami, Florida; that the parties agreed the
FAA would govern the arbitration; and, therefore, that the FAA
provides the proper basis, if any, for vacatur. The parties further
agreed that, although the initial round of briefing focused on the
New York Convention, the dispute over vacatur really boiled
down to an argument about the FAA’s evident partiality exception.
Grupo Unidos added that its Article V arguments remain valid
grounds for this Court to refuse confirmation of the awards, even
if vacatur was inappropriate.
We agree with the parties that
Corporación AIC changed
the statutory foundation for vacatur, but it did not affect our anal-
ysis in any real way, or the results we reach. The parties’ argu-
ments on vacatur -- while framed as arising out of the New York
Convention -- were really grounded in the FAA, so we will consider
them as FAA arguments. And their disputes about confirmation
are properly based on the New York Convention. With that, we
turn to the merits.
II.
We review the denial of a motion to vacate and the confir-
mation of international arbitration awards
de novo.
Técnicas Re-
unidas de Talara S.A.C. v. SSK Ingeniería y Construcción S.A.C., 40
F.4th 1339, 1343 (11th Cir. 2022);
Gianelli Money Purchase Plan &
Tr. v. ADM Inv. Serv., Inc., 146 F.3d 1309, 1311 (11th Cir. 1998).
A.
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21-14408 Opinion of the Court 13
If there is one bedrock rule in the law of arbitration, it is that
a federal court can vacate an arbitral award only in exceptional cir-
cumstances.
See Oxford Health Plans LLC v. Sutter, 569 U.S. 564,
568 (2013);
Gianelli, 146 F.3d at 1312. In accordance with this coun-
try’s “liberal federal policy favoring arbitration,”
AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citation omitted), our
courts understand arbitration as a complete method of dispute res-
olution, not “merely a prelude to a more cumbersome and time-
consuming judicial review process,”
Hall Street Assocs., LLC v.
Mattel, Inc., 552 U.S. 576, 588 (2008) (citation omitted). So, almost
always, an arbitral award should represent the end, not the start, of
a legal dispute.
See AIG Baker Sterling Heights, LLC v. Am. Multi-
Cinema, Inc., 508 F.3d 995, 1001 (11th Cir. 2007) (“Because arbitra-
tion is an alternative to litigation, judicial review of arbitration de-
cisions is ‘among the narrowest known to the law.’” (citation omit-
ted)).
The presumption against vacatur applies with even greater
force when a federal court reviews an award rendered during an
international arbitration.
Mitsubishi Motors Corp. v. Soler Chrys-
ler Plymouth, Inc., 473 U.S. 614, 631 (1985). As the Supreme Court
has explained, “[t]he goal of the [New York] Convention, and the
principal purpose underlying American adoption and implementa-
tion of it, was . . . to unify the standards by which agreements to
arbitrate are observed and arbitral awards are enforced,” in recog-
nition of the fact that the complex system of international com-
merce functions only if its disputes are given consistent and
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14 Opinion of the Court 21-14408
predictable resolutions around the world.
Scherk v. Alberto-Cul-
ver Co., 417 U.S. 506, 520 n.15 (1973);
see also Mitsubishi Motors,
473 U.S. at 629–31. Against this legal backdrop, U.S. courts refrain
from unilaterally vacating an award, rendered under international
arbitral rules, in all but the most extreme cases. It is no surprise,
then, that although the losing parties to international arbitrations
often raise defenses to award enforcement before our courts, those
efforts “rarely” succeed.
See Cvoro v. Carnival Corp., 941 F.3d 487,
496 (11th Cir. 2019) (citation omitted).
Grupo Unidos contends that the Panama 1 Arbitration pre-
sents this Court with one of those rare exceptions. It argues that
the panel’s non-disclosures concealed information related to the ar-
bitrators’ possible biases and thereby “deprived [Grupo Unidos] of
. . . [its] fundamental right to a fair and consensual dispute resolu-
tion process.” In particular, it reasons that Gaitskell’s nomination
of Gunter to serve as president of another arbitral panel, a position
that sometimes pays hundreds of thousands of dollars, possibly in-
fluenced Gunter to side with Gaitskell. And it asserts that the arbi-
trators’ work with the canal authority’s lawyers in other arbitra-
tions allowed them to become familiar with each other, creating a
potential conflict of interest.
Grupo Unidos is correct that both the ICC Rules and this
country’s arbitration law require arbitrators to disclose infor-
mation liberally. Arbitrators must “disclose to the parties any deal-
ing that might create an impression of possible bias.”
Univ. Com-
mons-Urbana, Ltd. v. Universal Constructors Inc., 304 F.3d 1331,
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21-14408 Opinion of the Court 15
1338 (11th Cir. 2002) (quoting
Commonwealth Coatings Corp. v.
Cont’l Cas. Co., 393 U.S. 145, 149 (1968)). And the FAA allows for
“an arbitration award [to be] vacated due to the ‘evident partiality’
of an arbitrator” when “the arbitrator knows of, but fails to dis-
close, information which would lead a reasonable person to believe
that a potential conflict exists.”
Id. at 1339 (citation omitted). So,
Grupo Unidos’s point that arbitrators should err on the side of
greater, not lesser, disclosure is well-taken.
But to the extent that Grupo Unidos seeks to have the entire
arbitral awards vacated under this standard simply because the ar-
bitrators worked with each other and with related parties else-
where, Grupo Unidos finds itself on much shakier footing. To rule
for Grupo Unidos, we would need to hold, in essence, that mere
indications of professional familiarity are reasonably indicative of
possible bias.
Chapter 1 of the FAA offers four grounds that may permit
the district court to “make an order vacating the award upon the
application of any party to the arbitration.” 9 U.S.C. § 10(a). Grupo
Unidos points to only one of those four grounds: “where there was
evident partiality or corruption in the arbitrators.”
Id. § 10(a)(2). A
movant may prove evident partiality “when either (1) an actual
conflict exists, or (2) the arbitrator knows of, but fails to disclose,
information which would lead a reasonable person to believe that
a potential conflict exists.”
Univ. Commons, 304 F.3d at 1339 (ci-
tation omitted). That said, “the ‘evident partiality’ exception is to
be strictly construed,” and “[t]he alleged partiality must be ‘direct,
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16 Opinion of the Court 21-14408
definite and capable of demonstration rather than remote, uncer-
tain and speculative.’”
Gianelli, 146 F.3d at 1312 (quoting
Middle-
sex Mut. Ins. Co. v. Levine, 675 F.2d 1197, 1202 (11th Cir. 1982)).
Grupo Unidos points to four late-disclosed relationships as
proof of evident partiality and grounds for vacatur under § 10(a)(2).
The first point Grupo Unidos makes is that Dr. Gaitskell nominated
Gunter to serve as the president of another tribunal during the
course of the Panama 1 Arbitration. This falls far short of meeting
the exacting standard for vacatur.
Grupo Unidos has not provided us with a single case where
this Court considered the act of an appointment of one arbitrator
by another in a separate case standing alone to be enough evidence
to justify vacatur.
Cf. Lozano v. Md. Cas. Co., 850 F.2d 1470, 1473
(11th Cir. 1988) (holding that the fact “that arbitrators appoint each
other to panels does not
per se manifest ‘evident partiality or cor-
ruption’” (citation omitted)). Nor can we find any. There must be
more. Thus, for example, we keep an eye out for “undisclosed
business relationship[s]” and “dealings” between arbitrators.
Com-
monwealth Coatings, 393 U.S. at 147–49. But there was no evi-
dence of any such dealings in this case. This record is barren of any
indication that Gunter evinced bias or that he was in any way in-
fluenced in the Panama I Arbitration because he was selected to
serve in another arbitration proceeding.
Nobody has disputed that there were many sound and im-
partial reasons for the parties to have chosen Gunter in this case.
The record evidence also offers many sound and impartial reasons
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21-14408 Opinion of the Court 17
for Gaitskell’s appointment of Gunter in the other arbitration. In
one of Gunter’s disclosures, Gunter wrote that when Gaitskell
nominated him in the unrelated case, “Gaitskell . . . explained to
[Gunter] that [the tribunal was] looking for a President who had
experience with construction arbitration cases.” Indeed, the record
also establishes the nature and extent of Gunter’s extensive experi-
ence. He has served, at different times, as an arbitrator or counsel
in over 220 arbitrations, as a member of the Board of Directors of
the Singapore International Arbitration Centre, as a co-chair of the
International Arbitration Committee of the American Bar Associa-
tion, and as a member of the Arbitration Committee of the Geneva
Chamber of Commerce’s Industry and Services division. Addition-
ally, he is regularly ranked in Who’s Who Legal -- and, notably,
recommended for his expertise in construction matters. Finally,
we repeat that Gunter affirmed in this very case that he was “im-
partial and independent and intend[ed] to remain so.” On this rec-
ord, a reasonable person would not suspect bias simply because
Gaitskell appointed Gunter in an unrelated proceeding.
The second alleged conflict cited by Grupo Unidos is said to
inhere in von Wobeser’s service with Jana as co-arbitrators in an
unrelated arbitration while the Panama 1 Arbitration was ongoing.
Grupo Unidos cites
University Commons to support its claim of
evident partiality. The problem with the argument is that in
Uni-
versity Commons, an arbitrator represented co-defendants in a dif-
ferent, ongoing case with a member of counsel appearing before
him in the arbitration. 304 F.3d at 1340. Although we thought that
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18 Opinion of the Court 21-14408
relationship posed a potential conflict, the relationship between co-
arbitrators is fundamentally different than the relationship be-
tween two counsel representing co-defendants. Arbitrators do not
represent a client. Their job is simple: to hear the case and apply
the law in a fair, reasonable, and impartial manner.
Nothing in the record evidence we have seen would cause a
reasonable person to suspect that von Wobeser somehow was im-
properly influenced by Jana. And von Wobeser himself affirmed
that he was “impartial and independent and intend[ed] to remain
so.” Without anything more, it would be “remote, uncertain and
speculative” to assume the arbitrator would violate his affirmation
of neutrality and independence.
Gianelli, 146 F.3d at 1312–13;
see
also Lifecare Int’l, Inc. v. CD Med., Inc., 68 F.3d 429, 4333–35 (11th
Cir. 1995).
The third point Grupo Unidos makes is that Gaitskell served
along with Loftis as co-arbitrators in a separate, unrelated arbitra-
tion before the Panama 1 Arbitration began, and Loftis now serves
as a member of the canal authority’s counsel. But “standing alone,
the fact that an arbitrator . . . had previous contacts with counsel
for one of the parties does not suggest evident partiality.”
Univ.
Commons, 304 F.3d at 1340. When an arbitrator and counsel had
“frequent interactions” in various “arbitrations, mediations, and lit-
igations prior to the arbitration in [that] case,” this Court noted that
“a large number of . . . encounters” might “imply an inappropri-
ately close association between arbitrator and counsel,” but
“[c]loser inspection reveal[ed]” that the interactions “result[ed]
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21-14408 Opinion of the Court 19
[from] the fact that both specialize[d] in construction law in Bir-
mingham, Alabama.”
Id. at 1339–40. We concluded that “[s]uch
familiarity due to confluent areas of expertise does not indicate
bias.”
Id. at 1340.
Moreover, because Gaitskell served with Loftis as co-arbitra-
tors in an unrelated case before the Panama 1 Arbitration had be-
gun, the link is even more attenuated than von Wobeser and Jana’s.
Regardless, Gaitskell is an experienced and sought-after arbitrator
in this field, and the fact that these individuals overlapped in unre-
lated, prior arbitrations was hardly a conflict at all, let alone a con-
flict that requires vacatur.
See Técnicas Reunidas, 40 F.4th at 1345;
see also In re Andros Compania Maritima,
S.A. (Marc Rich & Co.,
A.G.), 579 F.2d 691, 701–02 (2d Cir. 1978) (declining to vacate an
award where an arbitrator failed to disclose his past service as co-
arbitrator on nineteen panels with an interested party’s agent).
For the fourth and final alleged conflict, Grupo Unidos cites
the fact that Gaitskell serves as an arbitrator in an unrelated case
where McMullan, a member of Autoridad del Canal’s counsel, rep-
resented a party. We’re hard pressed to see how this in any way
questions Gaitskell’s impartiality. Repeated appearances establish
only familiarity, and familiarity “does not indicate bias.”
Univ.
Commons, 304 F.3d at 1340. This connection, too, is a non-issue.
It is little wonder, and of little concern, that elite members
of the small international arbitration community cross paths in
their work. As one of the canal authority’s expert witnesses testi-
fied, “[w]orldwide, there are only several dozen arbitrators who
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20 Opinion of the Court 21-14408
would be attractive candidates” for “a proceeding such as the Pan-
ama 1 Arbitration.” We refuse to grant vacatur simply because
these people worked together elsewhere. The record reveals no
evidence of
actual bias in the Panama 1 Arbitration. And as to
pos-
sible bias, Grupo Unidos has established only that some of the ar-
bitration’s participants were otherwise familiar with each other,
and “familiarity due to confluent areas of expertise does not indi-
cate bias.”
Id. We affirm the order of the district court denying the
application to vacate.
B.
Having found no reason to vacate the awards under Chap-
ter 1 of the FAA, 9 U.S.C. § 10(a)(2), the only remaining question is
whether we should decline to confirm the awards under Article V
of the New York Convention.
See Corporación AIC, 66 F.4th at
884 & n.5;
see also 9 U.S.C. § 207. Grupo Unidos suggests that
three different provisions in Article V of the New York Convention
-- Articles V(2)(b), V(1)(d), and V(1)(b) -- offer defenses to confirma-
tion and provide separate reasons for denying confirmation. At the
end of the day, these arguments are the same ones we have already
rejected, although the nomenclature is a little different. We are,
therefore, unpersuaded that any of these provisions offer a defense
to confirmation.
1.
The first defense is whether any of the arbitrators’ late-dis-
closed relationships violated Article V(2)(b) of the New York
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21-14408 Opinion of the Court 21
Convention, which provides a defense to an arbitral award if “[t]he
recognition or enforcement of the award would be contrary to the
public policy of that country.” New York Convention art. V(2)(b).
This defense, too, is “construed narrowly in light of the presump-
tion favoring enforcement of international arbitral awards,”
Cvoro,
941 F.3d at 496, and is “rarely successful,”
Técnicas Reunidas, 40
F.4th at 1344.
To vacate an award under the public policy defense, the
moving party must prove “violations of an ‘explicit public policy’
that is ‘well-defined and dominant’ and is ascertained ‘by reference
to the laws and legal precedents and not from general considera-
tions of supposed public interests.’”
Cvoro, 941 F.3d at 496 (cita-
tion omitted). “Put another way, the defense ‘applies only when
confirmation or enforcement of a foreign arbitration award would
violate the forum state’s most basic notions of morality and jus-
tice.’”
Técnicas Reunidas, 40 F.4th at 1345 (citation omitted). “The
party opposing enforcement of the award, here [Grupo Unidos],
has the burden of proving” the violation.
Cvoro, 941 F.3d at 495.
Undeniably, there is a public policy in the United States
against “evident partiality.” 9 U.S.C. § 10(a)(2);
see also Common-
wealth Coatings, 393 U.S. at 147. But, as we have already dis-
cussed, that public policy was not violated in this case. Thus, for
the same reasons we denied the application to vacate on evident
partiality grounds, we cannot refuse to confirm them.
2.
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22 Opinion of the Court 21-14408
Next up is whether the tribunal “was not in accordance with
the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country where the arbitration took
place.” New York Convention art. V(1)(d). The parties agreed to
follow the ICC Rules and the FAA. Grupo Unidos argued that the
composition of the tribunal violated both the ICC Rules and the
FAA because the four late disclosures all evinced a level of partiality
that Grupo Unidos would not have consented to. Again, the non-
disclosures did not violate this country’s prohibition against evi-
dent partiality. So, here, we focus only on the claim that the arbi-
tration violated the ICC Rules.
The record does not reflect an issue with the composition of
the tribunal due to the arbitrators’ late disclosures. The ICC Rules
were properly followed and enforced. The parties appointed arbi-
trators, who affirmed their independence and disclosed any poten-
tial conflicts. ICC Rules art. 11(2)–(3). Grupo Unidos challenged
the arbitrators based on the late disclosures, and the ICA followed
the proper procedure when denying that challenge.
Id. art. 14.
True, the ICA noted that Gaitskell should have disclosed his case
where McMullan appeared and that von Wobeser should have dis-
closed his case with Jana. But it did not disqualify either arbitrator
for those reasons because it did not find any facts that led it to ques-
tion either arbitrator’s independence or impartiality. As for Gait-
skell, the ICA said that the “mere fact” that the counsel appeared in
front of him before “is not such as to cast reasonable doubts as to
Mr Gaitskell’s continued independence or impartiality,” and that
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21-14408 Opinion of the Court 23
“is not changed by [his] failure to timely disclose this circum-
stance.” As for von Wobeser, the ICA observed that, while “Mr
von Wobeser’s more recent role as arbitrator in an [International
Centre for Settlement of Investment Disputes] case sitting together
with Mr Jana should have been disclosed as a professional relation-
ship pursuant to the ICC Note,” the ICA “does not consider that
role to be such that it calls into question Mr von Wobeser’s contin-
ued independence or impartiality.” Thus, while it may have been
prudent for Gaitskell and von Wobeser to provide broader disclo-
sures, the ICA did not find any reason to believe that these two
arbitrators actually violated ICC Rule 11.
The record shows that “the parties ‘explicitly settled on a
form’ for the arbitration, and ‘their commitment [was] respected.’”
Andes Petroleum Ecuador Ltd. v. Occidental Expl. & Prod. Co.,
No. 21-3039-cv, 2023 WL 4004686, at *2 (2d Cir. June 15, 2023) (al-
teration in original) (citation omitted). Everything suggests that
the ICA reasonably construed its own rules.
Inversiones y
Procesadora Tropical INPROTSA, S.A. v. Del Monte Int’l GmbH,
921 F.3d 1291, 1304 (11th Cir. 2019),
overruled on other grounds
by Corporación AIC, 66 F.4th at 880. So, we see no reason to refuse
confirmation of the awards.
3.
The final issue raised is whether Grupo Unidos “was not
given proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present [its]
case.” New York Convention art. V(1)(b). Grupo Unidos argues
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24 Opinion of the Court 21-14408
that this provision mandates “[f]undamental procedural fairness.”
See Restatement (Third) of U.S. Law of Int’l Comm. Arb. § 4.11
cmt. a (Am. L. Inst. Proposed Final Draft, 2019). According to the
Restatement, “this exception is interpreted narrowly and protects
only against serious procedural defects that have a material effect
on arbitral proceedings, rendering them fundamentally unfair.”
Id.
Similarly, other courts have interpreted it to require the forum
state’s basic due process standards.
See Soaring Wind Energy,
L.L.C. v. Catic USA Inc., 946 F.3d 742, 756 (5th Cir. 2020);
Slaney
v. Int’l Amateur Athletic Fed’n, 244 F.3d 580, 592 (7th Cir. 2001);
Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141, 145–46 (2d Cir.
1992). Even assuming the provision requires adherence to this
country’s basic due process principles, Grupo Unidos cannot suc-
ceed on this defense. The bare minimum of due process is an im-
partial proceeding, during which the parties had the opportunity to
present evidence and confront and rebut what is offered by the
other side.
See Harper v. Pro. Prob. Servs. Inc., 976 F.3d 1236, 1241
(11th Cir. 2020). There is no indication in this record that Grupo
Unidos did not have a robust opportunity to present evidence and
confront the other side’s evidence. And as we have already ob-
served, there is no evidence of partiality in this proceeding.
Accordingly, we affirm the order of the district court deny-
ing the application for vacatur and confirming the arbitral awards.2
2 The unopposed motion to withdraw as counsel by Caroline Edsall Littleton
is also granted.
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21-14408 Opinion of the Court 25
AFFIRMED.
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