First Circuit (Oʻahu) Circuit Court, Downtown Honolulu District Court, and Appellate Courts
Oral Argument Before the Hawaii Supreme Court
No. SCWC-11-0000350, Thursday, August 7, 2014, 11:15 a.m.
NORDIC PCL CONSTRUCTION, INC., fka NORDIC CONSTRUCTION, LTD., Respondent/Claimant/Counterclaim Respondent-Appellant, vs. LPIHGC, LLC, Petitioner/Respondent/Counterclaimant-Appellee.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioner:
Terence J. O’Toole, Judith Ann Pavey, Zachary N. Gershuni, and John P. Manaut
Attorneys for Respondent:
Kenneth R. Kupchak, Anna H. Oshiro, Robert H. Thomas, Christi-Anne H. Kudo Chock, and Mark M. Murakami
NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 05/05/14.
NOTE: Order assigning Circuit Court Judge Karl K. Sakamoto, in place of Wilson, J., recused, filed 05/07/14.
NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 05/13/14.
NOTE: Order assigning Circuit Court Judge Steven S. Alm, in place of Recktenwald, C.J., filed 05/20/14.
NOTE: Order accepting Application for Writ of Certiorari, filed 06/10/14.
COURT: PAN, Acting C.J.; SSM & RWP, JJ.; Circuit Court Judge Alm, in place of Recktenwald, C.J., recused; and Circuit Court Judge Sakamoto, in place of Wilson, J., recused.
At issue in this appeal is the alleged evident partiality of a neutral arbitrator based on his nondisclosure of relationships with two firms representing LPIHGC, Carlsmith Ball LLP and Starn O’Toole Marcus & Fisher. Pursuant to a subcontract agreement, LPIHGC and Nordic entered into binding arbitration and selected retired judge Patrick K.S.L. Yim (“Arbitrator Yim”) as neutral. Weeks after Arbitrator Yim issued a partial award in favor of LPIHGC, Nordic demanded Arbitrator Yim’s immediate disqualification on the basis of his nondisclosure of a relationship with Carlsmith Ball LLP. LPIHGC moved to confirm the arbitration award on the grounds that Nordic had not met its burden to prove evident partiality and had waived the right to challenge the award on that basis. Nordic moved to vacate the award based on Arbitrator Yim’s nondisclosure of an alleged long-standing attorney-client relationship with Carlsmith Ball LLP and three matters during the pendency of arbitration where he provided neutral services to both Carlsmith Ball LLP and Starn O’Toole Marcus & Fisher.
On appeal, LPIHGC raises the following two points of error. First, LPIHGC asks whether the ICA erred by creating and retroactively applying a new standard for finding evident partiality under Hawai?i Revised Statutes § 658A-23 (Supp. 2001) regarding a relationship between an arbitrator and counsel for a party. Second, LPIHGC asks whether the ICA erred in finding that Nordic had not waived its ability to vacate the award for evident partiality involving counsel where Nordic did not request additional information before the award was issued and failed to demonstrate that it did not know or could not have known about the relationship at the outset of the arbitration.