Wenbin Que v. Lihua Song

A foreign arbitration award should not be enforced if it is “repugnant to fundamental notions of what is decent and just in the United States.” Estate of Ke v. Yu, 105 F.4th 648, 660 (4th Cir. 2024) (cleaned up). Among them is the notion that proceedings must be “fundamentally fair.” Int’l Broth. of Elec. Workers v. CSX Transp., Inc., 446 F.3d 714, 720 (7th Cir. 2006). And that requires a “fair opportunity to present evidence and argument” to the arbitral panel. Brown v. Brown-Thill, 762 F.3d 814, 820 (8th Cir. 2014). The Ninth Circuit allowed enforcement of a foreign award issued after a hearing where one of three arbitrators engaged in clear misconduct. During one side’s arguments, the rogue arbitrator paid close attention. During the other’s, he did everything but arbitrate— he used the restroom, spoke to a third party, rode in a car, and boarded a train. His misbehavior derailed the arbitration and forced its early termination. The Ninth Circuit acknowledged that this arbitrator displayed a “concerning lack of attention.” 4a. Yet it held that his conduct was harmless because “the remaining two arbitrators” behaved properly. Id. That holding clashes with the views of many other courts, including this one, which have vacated awards when just one of three arbitrators misbehaved. See, e.g., Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 150 (1968). This case asks whether fairness demands that all appointed arbitrators perform with integrity, or whether two out of three is sufficient. The question presented is: Do arbitration proceedings held by a three-member panel lack fundamental fairness if one arbitrator has functionally abandoned his post?