USA – FLORIDA Trends and Developments Contributed by: Harry Burnett, Barry Kamar, Renzo Seminario Córdova and Marcio Vasconcellos, King & Spalding LLP
short, procedural questions “are generally for the arbi - trators themselves to resolve” ( Bamberger at 1288, quoting Klay v United Healthgroup, Inc. , 376 F.3d 1092, 1109 (11th Cir. 2004)). Therefore, the Eleventh Circuit held, consistent with the First, Second, Fourth and Tenth Circuits, that “disputes over the interpreta - tion of forum selection clauses in arbitration agree - ments raise presumptively arbitrable procedural ques - tions” and that “[t]he arbitrator’s construction holds, however good, bad, or ugly” ( Bamberger at 1288). The decision in Bamberger underscores the Eleventh Circuit’s strong support for international commercial arbitration and articulates a clear alignment with oth - er federal circuits in enforcing delegation clauses in cross-border contracts. Not every non-disclosure leads to vacatur In Grupo Unidos por el Canal, S.A. v Autoridad del Canal de Panama , 78 F.4th 1252 (11th Cir. 2023), cert. denied, 144 S. Ct. 1096 (2024), the Eleventh Circuit addressed the standards for arbitrator disclosures and reinforced the higher standards required for vacatur or non-confirmation of awards based on prior undis - closed relationships. In this case, Grupo Unidos por el Canal, a consortium of European companies, was awarded a multibillion- dollar contract by Autoridad del Canal de Panamá to expand the Panama Canal. Completion of the project was delayed by over twenty months, which led to a series of disputes including an ICC arbitration seated in Miami before a prominent and experienced tribunal comprised of Robert Gaitskell, Claus von Wobeser and Pierre-Yves Gunter. On 21 September 2020, the tribu - nal issued a USD265 million partial award in favour of Autoridad de Canal. ( Grupo Unidos at 1258–9.) Nearly a month after the partial award, Grupo Uni - dos requested four rounds of additional disclosures from each of the arbitrators, including for “any facts or circumstances that may affect [the arbitrators’] independence in the eyes of any of the Parties or that could give rise to reasonable doubts as to their impartiality” (at 1259). The arbitrators disclosed that they had served on panels in unrelated arbitrations
involving either opposing counsel or fellow arbitrators from this case. Prior to the issuance of the final award, Grupo Unidos challenged the arbitrators before the ICC’s International Court of Arbitration (ICA). While the ICA observed that the arbitrators should have been more thorough in their disclosures, it found that “none of these facts led it to question the arbitrators’ independence or impartiality” (at 1260). Grupo Unidos then sought to vacate the partial award and the final award in the Southern District of Florida, which denied the motions and confirmed both awards. On appeal, the Eleventh Circuit affirmed (at 1267) the district court’s confirmation of the arbitral awards. While the Court agreed that the arbitrators ideally should have disclosed more information and that “arbitrators should err on the side of greater, not less - er, disclosure” (at 1262), the Eleventh Circuit found that there was no indication that the arbitrators were biased, and that Grupo Unidos failed to show how the familiarity among the arbitrators compromised their impartiality (“familiarity ‘does not indicate bias’”) (at 1264). Additionally, the Court noted that to rule for Grupo Unidos it “would need to hold, in essence, that mere indications of professional familiarity are reason - ably indicative of possible bias” (at 1262), which it would not do, and concluded that “[i]t is little wonder, and of little concern, that elite members of the small international arbitration community cross paths in their work” (at 1264). While arbitrators can always endeavour to provide more fulsome disclosures, in this decision the Elev - enth Circuit recognised that not every non-disclosure will lead to vacatur. Conclusions As these recent developments show, the clear trend for Florida arbitration is towards greater clarity and predictability. The decisions discussed tackle some of the most difficult issues facing international arbitra - tion today and show a level of maturity that ought not be understated. The profound understanding demon - strated by Florida courts and the Eleventh Circuit is second to none in the United States and shows that international arbitration is on solid ground in Florida.
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