On January 7, 2014, the US Court of Appeals for the Second Circuit issued a non-precedential summary order in Ometto v. ASA Bioenergy Holding A.G. affirming the US District Court for the Southern District of New York's denial of a petition to vacate an arbitration award on the basis of an arbitrator's evident partiality under the Federal Arbitration Act (FAA) (No. 12-4022, (2d Cir. Jan. 7, 2014)).

In two arbitrations, Abengoa brought claims against Ometto arising from the 2007 purchase of a sugar cane business. Both arbitrations were heard by a three-arbitrator panel chaired by David Rivkin, a partner at Debevoise & Plimpton LLP (Debevoise). The arbitrators found in favor of Abengoa in both arbitrations and awarded Abengoa over $100 million in damages.

Ometto argued that the US District Court for the Southern District of New York erred in failing to vacate the arbitration award on the grounds of evident partiality under the FAA (9 U.S.C. § 10(a)(2)). Ometto alleged that Rivkin failed to disclose that Debevoise was providing legal advice to clients in several corporate transactions in which Abengoa was the opposing party.

The Second Circuit found no evident partiality and affirmed the district court's decision, noting that arbitrators are not judges "who can be disqualified in any proceeding in which impartiality might reasonably be questioned." The Second Circuit found no error in the district court's holdings that:

The Second Circuit further held that to the extent that Rivkin was careless, that carelessness did not arise to the level of willful blindness. Practitioners should be aware that the Second Circuit is not quick to set aside the results of an arbitration because of an arbitrator's alleged failure to disclose information.