Arbitrator Disclosure: In Defense of The Second Circuit Approach
Among the extensive literature associated with international commercial arbitration, disclosure has recently become ripe. Arbitrators should recognize the importance of the parties’ choice to resort to arbitration despite its costs. Practically, arbitrators are supposedly vigilant and proactive in disclosing any circumstances that may give rise to their potential bias. Nondisclosure blindfolds the parties to arbitrators’ true independence and impartiality. Operating on the premise that a dispute should be decided by a final and binding decision, non-disclosure may have implications in the post-award stage. Further, myriad or different disclosure standards may threaten the certainty and efficiency of the arbitration process. This Essay highlights the importance of having a clear established standard of disclosure. Given the interdependence between disclosure and impartiality, the Essay will surgically treat the subject through advocating the view of the Second Circuit on “evident partiality” by comparatively analyzing an actual dispute arbitrated in New York, challenged in New York, and sought to be enforced in Brazil. The Essay proceeds with Part II providing a background of the disclosure duty in international arbitration. Part III then analyzes the Abengoa case, the annulment proceedings in New York, and the enforcement proceedings in Brazil. Part IV advocates the Second Circuit approach of evident partiality by comparing the Brazilian Supreme Court approach on disclosure. Part V concludes.
Recommended Citation: Mohamed Sweify, Arbitrator Disclosure: In Defense of The Second Circuit Approach, 44 Fordham Int'l L.J. 529 (2020).