Circuit Refuses to Vacate $120 Million in Awards

, New York Law Journal

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The U.S. Court of Appeals for the Second Circuit on Tuesday rejected a Brazilian sugarcane magnate's last-ditch effort to vacate $120 million in arbitration awards against him. Adriano Giannetti Dedini Ometto had argued that the award should be tossed because the arbitration panel's original chairman, David Rivkin of Debevoise & Plimpton, didn't disclose that his colleagues at Debevoise worked on deals involving Ometto's adversary in the case.

The dispute stemmed from a soured sugarcane deal in 2007 between Ometto and the Spanish biofuels company Abengoa Bioenergia Agricola Ltda., known as Abengoa. Abengoa alleged in two International Chamber of Commerce arbitrations in New York that Ometto misrepresented aspects of the sale of his sugarcane businesses. In 2011, with help from Iñigo Quintana of the Madrid firm Cuatrecasas, Gonçalves Pereira, the company won two awards totaling roughly $120 million.

Ometto, looking to a New York team from Hogan Lovells, petitioned the ICC to vacate the awards, arguing that Rivkin improperly served as lead ICC arbitrator without disclosing that Debevoise was advising on three deals in which Abengoa was a counterparty. Rivkin resigned, but a reconstituted panel reconfirmed the awards. Southern District Judge Jed Rakoff (See Profile) refused to toss the ruling.

In Tuesday's decision affirming Rakoff, the Second Circuit noted that Debevoise's conflicts checks system, and Rivkin's omission, left something to be desired. But the court found no error in Rakoff's decision. "To the extent that the lead arbitrator was careless, that carelessness does not rise to the level of willful blindness," Judges Rosemary Pooler (See Profile), Barrington Parker Jr. (See Profile) and Denny Chin (See Profile) concluded in an unsigned summary order.

Dechert's G. Eric Brunstad Jr., handled Ometto's Second Circuit appeal.

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