Litigator of the Week: Henry Weisburg of Shearman & Sterling
In 2011, the Spanish biofuels company Abengoa Bioenergia Agricola Ltda. turned to Shearman & Sterling's Henry Weisburg for help. The company had just won $120 million in two arbitration awards against a Brazilian sugar cane magnate over a deal gone sour. But lawyers for the losing party, Adriano Ometto, sued in New York to get the awards thrown out, citing evidence that the lead arbitrator, David Rivkin of Debevoise & Plimpton, was tainted by conflicts of interest.
On Tuesday, a year after prevailing in U.S. district court, Weisburg convinced an appellate court to affirm Abengoa's awards. (See here for our full report on the ruling.) Along the way he helped clear Rivkin, a friendly rival in the world of high-stakes international arbitration, of any whiff of impropriety.
To vacate the awards, Weisburg said, Ometto needed to establish that "a reasonable person" would find Rivkin to be partial to one party. To make that case, Ometto and his lawyers at Hogan Lovells alleged that Rivkin failed to disclose that lawyers at Debevoise worked on deals involving Abengoa. But Rivkin testified credibly that he was completely unaware of the representations, and Weisburg presented additional evidence showing that Debevoise's conflicts database had a flaw that concealed potential conflicts. (It has since been fixed, the firm said.)
In Tuesday's decision, the U.S. Court of Appeals for the Second Circuit concluded that any possible client conflicts could have had no impact on Rivkin's independence. "To the extent that the lead arbitrator was careless, that carelessness does not rise to the level of willful blindness," the Second Circuit panel wrote.
Weisburg and Rivkin have traveled for years in the same elite international arbitration circles, though they've never come together as adversaries or co-counsel or served on the same arbitral panel. In December 2012, while the appeal was ongoing, we named the two of them Global Lawyers of the Year for winning multibillion victories for The Dow Chemical Company (Weisburg) and Occidental Petroleum Corporation (Rivkin).
Weisburg, with his three-plus decades in practice, said that had never seen an instance where an arbitrator was called to testify in court on a motion to vacate an award, as Rivkin was. "In this case, protecting the award involved protecting the reputation and veracity of the arbitrator who was under attack," said Weisburg, reached in London. "His interests were my client's interests."