In view of the foregoing, you prepare, file and serve an order to show cause seeking to vacate the arbitration award supported by a complaint, a legal brief, your client’s affidavit setting forth the procedural history and your certification bringing to the court’s attention the results of your “googling” of the arbitrator’s name. Thereafter, the condominium association’s attorney cross-moves to convert the award into a judgment and claims “no harm, no foul” with respect to the issue of arbitrator disclosure.
During oral argument before the court, you point out that the exorbitantly high interest rate seems punitive and you cite Barcon for the proposition that there is no need to show bias, only whether a reasonable person would have asked some questions had the disclosure been made at the outset of the hearings. You point out that if the disclosure had been made, undoubtedly your client would have wanted to ask whether the arbitrator had any prior involvement with condominium developers, plus you would have questions regarding the nature of his role as president of his condominium board.
When rendering its decision, the court takes notes of the unusually high interest rate awarded by the arbitrator as well as the arbitrator’s failure to disclose a prior position as a condominium board president:
Even though there may not have been any partiality in this case, when you put it all together it has a certain odor to it, that someone looking out � from the outside in can say, something’s not right here. Even though it may have been perfectly done, it gives that aura, that appearance that just something sticks in your craw. So I’m going to set this aside and send it back.
The lesson to be learned from all the foregoing? For prospective arbitrators, prior to being appointed, they must reveal to the parties anything that might have a tangential effect on their impartiality. For the litigator, clearly, arbitrator bias � or even the appearance of possible bias � provides the best shot for a disgruntled client seeking to vacate an unfavorable award. And with today’s technology, there are independent ways to confirm whether all that ought to have been disclosed was in fact revealed.
Eiseman, a member of Goetz Fitzpatrick, of Glen Rock and New York City, specializes in the arbitration and litigation of commercial disputes.
