Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS114665. David L. Mining, Judge.
Freedman & Taitelman, Bryan J. Freedman, Bradley H. Kreshek for Defendant and Appellant.
Berger Kahn, Leon J. Gladstone, Michael J. Aiken; Gladstone Michel Weisberg, Willner & Sloane for Plaintiffs and Respondents.
BOREN, P.J.
Defendant TF1 International (TF1), a French film distributor, appeals from a judgment confirming an arbitration award. The arbitrator found that TF1 breached its contractual obligation to pay the motion picture production lender and assignee in a film distribution deal, the Royal Bank of Scotland (the bank), a $1.5 million advance that was payable by TF1 upon delivery of the film. The arbitrator’s award directed TF1 to pay the advance to the bank, thereby effectively exonerating plaintiffs, Fireman’s Fund Insurance Company and International Film Guarantors (hereinafter collectively referred to as Fireman’s Fund), on a completion bond they had issued to the bank guaranteeing the film’s completion and delivery.
The arbitrator’s award also found that TF1 had wrongfully insisted on a theatrical release of the film in the United States as a condition to the payment, and that it had previously waived that same condition expressly for the benefit of the bank and Fireman’s Fund. The arbitrator’s award further determined that TF1 had waived a March 31, 2007, delivery deadline when it tried to postpone the film’s delivery, and that TF1’s efforts to delay and impede delivery estopped it from later invoking the deadline as a reason for refusing to pay the advance.
On appeal, TF1 contends that the award should be vacated because the arbitrator exceeded his authority (Code Civ. Proc., § 1286.2, subd. (4)) by (1) permitting nonsignator and assignee Fireman’s Fund to join in the arbitration between TF1 and the licensor and assignor of the film distribution deal, Bauer Martinez International, Inc. (BMI), and (2) purportedly rewriting the parties’ agreement and fashioning an irrational award. TF1 also urges that the award should be vacated because the arbitrator failed to make critical disclosures prior to commencing the arbitration, and the arbitrator thus was not impartial. (§ 1286.2, subd. (4).) The contentions are without merit.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL SUMMARY
The underlying facts
This dispute arose from related agreements regarding the distribution of a motion picture film entitled The Flock. The initial agreement was a 14-page “Memo Deal,” dated October 25, 2005, between TF1, a French company with its principal place of business in France, and BMI, a company based in Florida. The Memo Deal provided for TF1’s exclusive distribution and exploitation of the film in France and other French speaking territories. For this right, TF1 agreed to pay a minimum guaranteed advance of $1.5 million, half of which was due on receipt of a notice of availability and the other half upon receipt and acceptance of the film.
The film, starring Richard Gere, was not released theatrically in the United States but was commercially available for viewing on DVD and other electronic media.
An assignment clause in the Memo Deal permitted either party to “freely assign, transfer... all or portion[s] of its rights and obligations... without the other party’s prior written consent, subject to informing the other party in writing.” The agreement also stated that TF1 would “execute a Notice of Assignment... for the purpose of financing the Picture.”
As subsequently found by the arbitrator, the notice of assignment was security for the loan needed to finance the film’s production. BMI assigned its right to collect TF1’s advance to the lender, who was then assured of repayment as long as the completed film was delivered to TF1 by the due date specified in the Memo Deal. The completion guarantor, i.e., Fireman’s Fund, in turn, assured the lender that the film would be delivered on time in order to trigger TF1’s obligation to pay the advance money. If the film was not delivered, Fireman’s Fund would pay the amount that would have been due.
The Memo Deal also contained an arbitration clause. The parties agreed that “[u]ntil full payment of the Advance, this agreement and any other agreement between the parties in connection with the Film is subject to binding IFTA [Independent Film & Television Alliance] Rules and arbitration in Los Angeles, and is to be construed, interpreted, and enforced in accord with California law.” The Memo Deal further provided that only after full payment of the $1.5 million advance would the parties’ agreement be interpreted and enforced outside of arbitration (in Parisian courts and under the laws of France).
IFTA’s Rules for International Arbitration provided, in pertinent part, as follows: that the “Arbitrator shall exercise all powers granted to commercial Arbitrators under the laws of the State of California” (rule 8.2); that the “Arbitrator shall rule on his or her own jurisdiction” (rule 8.3); and that the “Arbitrator shall determine the rules of procedure for the arbitration; and shall resolve any disputes as to the jurisdiction of the Arbitrator” (rule 9.4).
On the same date as the Memo Deal, BMI and TF1 signed a separate Side Deal entitled “US Theatrical Release Commitment.” The side agreement provided that the U.S. theatrical release “on no less than 1000 screens” was a material part of the agreement, and that if there was no such theatrical release, TF1 could either propose a reduction of the amount of the advance money or terminate the Memo Deal. BMI and TF1 also specified in this agreement that “this Side letter [is made] part of the Memo Deal.”
In February of 2006, BMI and TF1 signed a notice of assignment, whereby BMI indicated it had assigned to the bank its right to receive the $1.5 million advance as security for a production loan. The notice of assignment also instructed TF1 to pay the advance to the bank until such time as the bank notified TF1 that the bank’s production loan had been repaid. At the same time, BMI, TF1 and Fireman’s Fund executed a separate document—the acceptance of assignment—reflecting TF1’s acknowledgment of BMI’s assignment of the advance to the bank and TF1’s agreement that, until such time as it received notice to do otherwise, TF1 (referred to as the licensee) would pay the advance money to the bank.
In addition to confirming the assignment of the advance, the acceptance of assignment document provided that TF1 waived the U.S. theatrical release as a condition precedent to paying the advance to the bank, and that it now agreed that delivery of the film by March 31, 2007, and the technical inspection of the film elements would be “the sole remaining requirement sufficient to trigger” TF1’s obligation to pay the bank. As the arbitrator found, delivery for the purposes of triggering TF1’s obligation to the bank was “a two stage delivery process, namely delivery and technical acceptance.” The bonded items were to be delivered to a specified film laboratory for inspection in a process governed by a laboratory access letter, and the necessary documentation would be delivered electronically. As further found by the arbitrator, TF1 was fully aware when it signed the acceptance of assignment that it was risking a “potential wors[t] case scenario,” whereby it would have to pay the advance money due, even in the absence of a U.S. theatrical release.
The film was completed by January of 2007. However, TF1 did not want it because BMI had not arranged for a theatrical release in the U.S. TF1 then asserted that the March 31 delivery date “shall be postponed until [the] confirmation of [a] U.S. theatrical release date,” and later refused to sign the laboratory access letter to initiate the technical inspection which was intended to follow the physical delivery of the film. TF1 specifically advised BMI that the technical review process “will be frozen until you notify us [of] a U.S. Theatrical release” date.
BMI nonetheless sought to deliver the film. On March 29, 2007, BMI sent to TF1 the requisite documentation. Because TF1 refused to sign the laboratory access letter, BMI made arrangements with the film lab to keep the film there until the access letter was signed. Physical elements of the film had arrived at the lab, but as of the first business day after the March 31 deadline some unspecified items were still detained by customs officials. TF1 refused to pay the advance to the bank and sought to terminate the agreements, asserting that not all items were delivered by the March 31 deadline—despite TF1’s prior notification to BMI that it did not want delivery, and TF1’s prior assertion of a postponed delivery date. TF1 also complained that contrary to the requirement in the side agreement to the Memo Deal, there was no U.S. theatrical release date given.
The arbitration
In June of 2007, BMI filed a notice of arbitration, claiming that the film had been delivered and that TF1 had refused to pay the advance. The notice of arbitration identified Fireman’s Fund as an interested party. Fireman’s Fund also filed a demand for arbitration and filed a joinder request, noting its potential contractual liability to the bank under the completion bond in the event of a finding that the film was not properly delivered. The arbitration commenced under the auspices of IFTA, as required by the arbitration clause in the underlying agreement.
Prior to the selection of the arbitrator, the person ultimately chosen to arbitrate had disclosed that he had held “executive positions in business and legal affairs with two major completion bond companies.” Later, according to a declaration by TF1’s counsel, during the arbitration hearing, the arbitrator indicated to the parties that he had represented bonding companies in the past, and that he knew one of the witnesses presented by Fireman’s Fund. In response, two declarations submitted by Fireman’s Fund established that the arbitrator did not say anything about knowing a witness. The declarations established that the witness’s name was included on a witness list, and that his name had come up during the course of the hearing because his name appeared in some e-mails that had been admitted into evidence. Thereafter, the arbitrator stated that he would like to hear that witness’s testimony. The witness himself, Steven Leib, declared that he did not know the arbitrator.
TF1 also objected to the participation and joinder of Fireman’s Fund and urged that the arbitrator had no authority to determine whether Fireman’s Fund could be joined in the TF1 and BMI arbitration. Fireman’s Fund argued that under the terms of the Memo Deal any agreement between the parties was subject to arbitration, and that pursuant to the notice and acceptance of assignment Fireman’s Fund had the right to enforce the arbitration provision in the Memo Deal.
In October of 2007, the arbitrator issued an interim ruling in which he determined that under IFTA rules for arbitration, which process had been incorporated into the Memo Deal’s arbitration clause, the arbitrator had the jurisdiction and broad authority to determine whether or not Fireman’s Fund could join in the TF1 and BMI arbitration. The arbitrator also determined that pursuant to the notice and acceptance of the assignment, Fireman’s Fund was a third party beneficiary entitled to enforce the arbitration provision of the Memo Deal.
In April of 2008, the arbitrator issued an award, finding in pertinent part as follows: that TF1 waived the U.S. theatrical release condition in the Memo Deal when it agreed to accept delivery under the materially modified terms in the acceptance of assignment, which was for the benefit of the bank and the guarantor; that TF1 breached its obligation to pay the bank; and that TF1 was estopped by its conduct from claiming that delivery of the film was untimely. The arbitrator ordered TF1 to pay the $1.5 million advance to the bank and awarded Fireman’s Fund its costs and fees, and also ordered BMI to reimburse TF1. Noting that TF1 had never raised any issue as to the propriety of an order compelling payment to the bank until it submitted a posthearing brief, the arbitrator found that TF1 had raised the matter belatedly and, in any event, that he had authority to order such a payment under IFTA rules.
Thereafter, the parties filed respective petitions to confirm or vacate the award. The trial court confirmed the award and rendered judgment in favor of Fireman’s Fund.
DISCUSSION
I. The arbitrator’s ruling on jurisdiction was within the power and authority conferred upon him by California’s statutory scheme specifically governing international arbitration matters ( § 1297.11 et seq.).
TF1 contends that the arbitrator did not have the authority to determine that Fireman’s Fund, a nonsignatory third party beneficiary to the Memo Deal, was entitled to join TF1 and BMI in the arbitration proceeding. TF1 relies on the general proposition that “[t]he preliminary determination of standing to arbitrate as a party to the arbitration agreement is a question for the trial court.” (Bouton v. USAA Casualty Ins. Co. (2008) 167 Cal. App.4th 412, 425; see also Smith v. Microskills San Diego L.P. (2007) 153 Cal. App.4th 892, 896.) As further observed by TF1, generally “notwithstanding an arbitrator’s broad authority to resolve questions presented by a controversy, an arbitrator has no power to determine the rights and obligations of one who is not a party to the arbitration agreement. [Citation.] The question of whether a nonsignatory is a party to an arbitration agreement is one for the trial court in the first instance.” (American Builder’s Assn. v. Au-Yang (1990) 226 Cal.App.3d170, 179.)
However, a special body of California law—sections 1287.11 et seq.—governs the arbitration of international commercial disputes. In the context of such an international arbitration, California law specifically authorizes the arbitrator to rule on his own jurisdiction: “The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement....” (§ 1297.161, italics added.) Also, in matters governed by this statutory scheme, “no court shall intervene except where so provided by this title, or applicable federal law.” (§ 1297.51, italics added.)
TF1 faults Fireman’s Fund’s focus on international commercial arbitration statutes, asserting that a defense based on such statutes was belatedly raised for the first time on appeal and is predicated on certain factual findings not previously addressed by the arbitrator or the trial court. First, we note that the application of international commercial arbitration statutes was actually brought up prior to arbitration by TF1 in its defense to the initial demand for arbitration, when it cited section 1297.281 and acknowledged that “[f]or arbitration of international commercial disputes, the arbitrator must decide the controversy in accordance with any rules of law selected by the parties.” Thus, TF1 should be hard-pressed to complain about any tactical disadvantage from Fireman’s Fund’s application on appeal of the international commercial arbitration statutes. That is because the arbitration provision in the Memo Deal unequivocally requires the application of “binding IFTA Rules and arbitration,” and IFTA rules for international arbitration require that the “[a]rbitrator shall exercise all powers granted to commercial [a]rbitrators under the laws of the State of California” and be subject to California law unless the parties agree otherwise. And, one of those laws is the previously cited provision that, “The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement....” (§ 1297.161.)
Second, although generally a party may not change the theory of its case on appeal when the issue was not properly raised in the trial court, this is only when the new issue involves a factual matter open to controversy. (See Adelson v. Hertz Rent-A-Car (1982) 133 Cal.App.3d221, 225-226.) TF1 asserts that whether or not the arbitration involves an international commercial dispute is an issue of fact and law not previously determined by the arbitrator or the trial court. However, we find the international nature of the matter not reasonably subject to dispute. As specified in the Memo Deal document, “TF1 International” is a company whose registered office is in France, BMI’s office is in Florida, and the arbitration was to occur in Los Angeles. Thus, the arbitration agreement in the Memo Deal is blatantly “international,” within the meaning of international arbitration statutes (§§ 1297.11, 1297.13, subds. (a), (b)), and “[t]he arbitral tribunal may rule on its own jurisdiction....” (§ 1297.161.)
Moreover, the cases upon which TF1 relies for the proposition that the jurisdictional issues must be decided by the trial court rather than the arbitrator (e.g., Bouton v. USAA Casualty Ins. Co., supra,167 Cal. App.4th at p. 425; Smith v. Microskills San Diego L.P., supra, 153 Cal. App.4th at p. 896) are readily distinguishable because they involve arbitration brought pursuant to section 1280 et seq. (domestic arbitration), and not an international arbitration situation. Not only does the international arbitration statutory scheme specifically confer jurisdictional authority upon the arbitrator (§ 1297.161), but it expressly “supersedes Sections 1280 to 1284.2, inclusive, with respect to international commercial arbitration.” (§ 1297.17.)
It is thus unnecessary to discuss Fireman’s Fund’s additional assertion that TF1 waived its objection to the involvement of Fireman’s Fund in the proceedings by failing to seek judicial review within 30 days of the arbitrator’s October 9, 2007, preliminary ruling. (See § 1297.166: “If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party shall request the superior court, within 30 days after having received notice of that ruling, to decide the matter or shall be deemed to have waived objection to such finding.”)
Finally, TF1 contends that even assuming the Memo Deal’s reference to IFTA rules and to the use of California law would otherwise result in applying the international arbitration statutory scheme, the Memo Deal nonetheless fails to clearly and unmistakably vest the arbitrator with authority to determine jurisdiction over Fireman’s Fund as a third party beneficiary. Applying federal law, the United States Supreme Court has held that “[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944, quoting AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 649.) “[G]iven the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the ‘who should decide arbitrability’ point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” (First Options of Chicago, Inc. v. Kaplan, supra, 514 U.S. at p. 945.)
California Courts of Appeal have adopted this federal standard—that a court decides arbitrability absent clear and unmistakable evidence that the parties intended to submit the question of arbitrability to the arbitrator. (See Dream Theater, Inc. v. Dream Theater (2004) 124 Cal. App.4th 547, 551-553 (Dream Theater); Rodriguez v. American Technologies, Inc. (2006) 136 Cal. App.4th 1110, 1117, 1123 (Rodriguez).) Significantly, both California and federal courts have held that the incorporation of arbitration rules, which provide for the arbitrator to determine arbitrability, constitutes clear and unmistakable evidence that the parties intended the arbitrator to decide the issue of arbitrability. In Dream Theater and Rodriguez, the Courts of Appeal so held where the contracts incorporated similar rules by the American Arbitration Association (AAA). (Dream Theater, supra, 124 Cal. App.4th at p. 557 [AAA Commercial Arbitration Rules]; Rodriguez, supra, 136 Cal. App.4th at p. 1123 [AAA Construction Industry Arbitration Rules].) Federal courts have likewise reached the same conclusion where contracts incorporated various international arbitration rules. (Contec Corp. v. Remote Solution Co., Ltd. (2d Cir. 2005) 398 F.3d 205, 208 [express incorporation of AAA Commercial Arbitration Rules, rule R-7(a)]; Shaw Group Inc. v. Triplefine Intern. Corp. (2d Cir. 2003) 322 F.3d 115, 122 [implied incorporation of International Chamber of Commerce Rules, art., 6, § 2]; Apollo Computer, Inc. v. Berg (1st Cir. 1989) 886 F.2d 469, 472-473 [express incorporation of International Chamber of Commerce Rules, arts. 8.3 & 8.4 required arbitrator to decide “arbitrability” issue of whether objecting party was bound to arbitrate dispute with an assignee of the contract].)
TF1 relies on Gilbert Street Developers, LLC v. La Quinta Homes, LLC (2009) 174 Cal. App.4th 1185 (Gilbert Street), for the proposition that mere incorporation of IFTA rules did not reflect a “clear and unmistakable” intent to vest the arbitrator with authority to determine the scope of his own jurisdiction, and thus that the arbitrator purportedly could not include Fireman’s Fund in the arbitration as a third party beneficiary. However, Gilbert Street is readily distinguishable, and TF1’s reliance on it is misplaced.
Gilbert Street involved a clause in the operative agreement whereby arbitration would be “‘conducted in accordance with the Rules of the [AAA] existing at the date thereof,’” and the AAA’s rules did not yet at the time the agreement was signed specifically authorize arbitrators to decide their own jurisdiction, though the rules were later amended to so provide. (Gilbert Street, supra, 174 Cal. App.4th at p. 1187, fn. 1, & pp. 1187-1188.) The court thus found that a rule not yet in existence could not be clearly and unmistakably incorporated by reference into an agreement: “In this case we hold that a contract which contains the mere possibility that [AAA] rules might one day in the future provide that arbitrators would have the power to decide their own jurisdiction does not ‘clearly and unmistakably’ provide that arbitrators will determine their own jurisdiction.” (Id. at p. 1187.)
In contrast to the situation in Gilbert Street, here, the rules being incorporated clearly did exist at the time of incorporation, “so the parties [could] know exactly what they are incorporating.” (Id. at p. 1194.) As the court in Gilbert Street explained in noting the similarity with the Dream Theater and Rodriguez cases, in those two cases “the parties could go look up the AAA rules to which they were agreeing beforehand, and see that, yes, they were conferring on arbitrators the power to decide if a dispute was arbitrable in the first place. To go beyond the incorporation of an existent rule and allow for the incorporation of a rule that might not even come into existence in the future, however, contravenes the clear and unmistakable rule. We decline to take the next step beyond Dream Theater and Rodriquez.” (Gilbert Street, at p. 1193.) In the present case, there is no attempt to incorporate by reference a rule not in existence at the time of incorporation.
Gilbert Street is further distinguishable because that situation (and the federal securities cases discussed therein) involved only an organization’s arbitration rules. Here, in contrast, the matter involves both IFTA arbitration rules and also a specific statute (§ 1297.161), which vests the arbitrator with the authority to determine its own jurisdiction. Because the parties are presumed to have known the law (see Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 141-142; Garnette v. Mankel (1945) 71 Cal.App.2d 783, 787), the parties here are presumed to have known and intended that in this international arbitration process “[t]he arbitral tribunal may rule on its own jurisdiction....” (§ 1297.161.)
Hence, the parties must be deemed to have clearly and unmistakably intended that the arbitrator have authority to rule on jurisdictional matters, and thus to include Fireman’s Fund as a third party beneficiary in the arbitration process.
II. The award did not exceed the arbitrator’s powers and was rationally related to his findings that TF1 had modified its original rights and obligations under the Memo Deal when it signed the acceptance of assignment, which waived the requirement of a U.S. theatrical release.
“[T]he remedy an arbitrator fashions does not exceed his or her powers if it bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly, by the arbitrator.” (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 367.) “Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her factual findings and contractual interpretation.” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1182.) Such relief may, of course, be based on broad principles of justice and equity and may mandate specific performance as a remedy. (See Advanced Micro Devices, Inc. v. Intel Corp., supra, 9 Cal.4th at p. 389.) Also, in the present case, IFTA’s Rules for International Arbitration, rule 8.2, specifically empowered the arbitrator to issue broad equitable relief.
Nonetheless, TF1 complains that the arbitrator’s award directing specific performance of TF1’s contractual obligation to pay the bank exceeded his powers because it was purportedly irrational and unsound. TF1’s asserts that it had no obligation to pay the bank absent BMI’s performance of all the conditions under the original Memo Deal, and it complains that the arbitrator arbitrarily modified the Side Deal and unilaterally conditioned TF1’s right to terminate and demand a refund on TF1’s first paying the advance to the bank.
However, TF1 ignores the acceptance of assignment document, which materially modified both the Memo Deal and the Side Deal. As noted by the arbitrator, TF1 acknowledged in the acceptance of assignment that delivery then became the sole requirement for triggering TF1’s obligation to pay the bank. Thus, the arbitrator found the following: that TF1 had waived a U.S. theatrical release as a condition for payment to the bank; that TF1 had impeded BMI’s delivery and demanded postponement on the pretext that the U.S. release was still a condition precedent to payment; that TF1 had breached the acceptance of assignment by failing to pay the bank in accordance with that document; and that TF1 was estopped by its conduct from invoking the March 31, 2007, delivery deadline.
On that basis, the arbitrator rationally ordered TF1 to specifically perform by paying the bank. The relief ordered resolved the harm caused to Fireman’s Fund by TF1’s breach and protected Fireman’s Fund from the liability it would face on the completion bond because of that breach, effectively exonerating it on the bond. Accordingly, the award was rationally related to the facts, the findings, and the breach and thus was within the scope of the arbitrator’s broad powers.
III. Uncontradicted declarations explained that the arbitrator was not acquainted with a Fireman’s Fund witness, and the arbitrator had sufficiently revealed his past experience in the completion bond business.
TF1 contends that the award should be vacated because the arbitrator failed to make critical disclosures. It is well established that “the proposed neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” (§ 1281.9, subd. (a).) “‘Whether an award is tainted by bias because an arbitrator failed to disclose a particular relationship is a factual determination made by the court reviewing the award. [Citation.] The party claiming bias bears the burden of establishing facts supporting its position. [Citation.] The test is objective, i.e., whether the relationship would create an impression of bias in the mind of a reasonable person.’” (Guseinov v. Burns (2006) 145 Cal. App.4th 944, 957; see also IFTA’s Rules for International Arbitration, rule 6.5.)
Here, as alleged in a declaration by TF1’s counsel in support of its postaward petition to vacate: “During the arbitration hearing, the Arbitrator intimated, for the first time, to the parties that he represented bonding companies in the past, and he knew one of [Fireman’s Fund’s] witnesses, i.e., Steven Leib. In fact, the Arbitrator, on his own initiative, demanded that Steven Leib, an individual the Arbitrator is familiar with, appear as a witness during the arbitration proceedings.” (Italics added.) However, prior to the selection of the arbitrator, the person ultimately chosen to arbitrate had disclosed that he had held “executive positions in business and legal affairs with two major completion bond companies.”
TF1 complains on appeal that the arbitrator failed to disclose his acquaintance with a witness for Fireman’s Fund, and that had such fact been disclosed TF1 would have entertained doubt regarding the arbitrator’s impartiality. However, this mistaken factual assertion—based merely on what counsel for TF1 thought the arbitrator “intimated”—is refuted by two declarations submitted by Fireman’s Fund in its opposition to TF1’s petition to vacate the award. These two uncontradicted declarations explain TF1’s mistaken impression and establish that the arbitrator did not say anything about knowing a witness.
The declaration by counsel for Fireman’s Fund explained that the witness’s name was included on a witness list, and that the name had come up during the course of the hearings because his name appeared on a number of e-mails that had been admitted into evidence. Thereafter, the arbitrator stated that he would like to hear that witness’s testimony. As counsel declared, the arbitrator “never indicated any familiarity with any of the witnesses.” The witness in question, Steven Leib, also submitted a declaration. Leib asserted that he had “never met” the arbitrator before the arbitration hearing and never had any prior business or social dealings with the arbitrator.
TF1 did not refute these declarations submitted by Fireman’s Fund, which more than adequately explained what was purportedly “intimated” by the arbitrator and apparently misheard or misconstrued by counsel for TF1. Moreover, even accepting TF1’s factual fantasy that the arbitrator was familiar with this witness from the arbitrator’s past work for bonding companies, TF1 does not focus any complaint on the actual testimony of this witness.
TF1 also contends that the arbitrator failed to disclose his prior representation of bonding companies. However, the revelation prior to selection of the arbitrator that the arbitrator had held executive positions in business and legal affairs with major completion bond companies constituted sufficient disclosure of his prior representation of bonding companies.
Accordingly, TF1’s contention that the award should be vacated for failure of the arbitrator to make critical disclosures is without merit.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.