In a case of first impression, the Hawaii Supreme Court has adopted a “fundamental fairness” standard for judges to use in reviewing the enforceability of contract clauses governing the selection of arbitrators.
Justice Sabrina McKenna, writing for the court, said the standard was promulgated by the U.S. Court of Appeals for the Sixth Circuit in its 2004 ruling in McMullen v. Meijer. According to McKenna, “the Sixth Circuit recognized, ‘When the process used to select the arbitrator is fundamentally unfair, … the arbitral forum is not an effective substitute for a judicial forum, and there is no need to present separate evidence of bias or corruption in the particular arbitrator selected.’ ”
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