Arbitrator Challenges: Balancing Flexibility, Confidentiality and Efficiency
Jason Gottlieb and Michael Mix of Curtis, Mallet-Prevost, Colt & Mosle review guidance on arbitrator challenge procedures and standards, explore whether there is any way for challenge decisions to be made available to the public, and discuss potential abuses of the arbitration selection process.
March 27, 2015 at 11:48 AM
13 minute read
Proponents of arbitration typically laud its advantages of flexibility, efficiency and confidentiality. However, challenges to a nominated arbitrator can put these goals in conflict right from the arbitration's inception. Perhaps to enable flexibility, many arbitral bodies' procedural guidelines for challenges are not highly detailed. And perhaps to safeguard confidentiality, few arbitral bodies publish their arbitrator challenge decisions.
The result, however, is that arbitration participants have less information about whether their arbitrator choice may be subject to challenge; whether a prospective challenge is justified; what procedures (if any) are available to gather more information about an arbitrator; or what penalties (if any) exist for a party who abuses the process. As a result, disputes may arise on basic issues. And while most arbitrator selections and challenges are undoubtedly made in good faith, the lacuna of information yields a situation that is subject to abuse by overzealous participants.
This article surveys the rules of several arbitral bodies to review their guidance on challenge procedures and standards, and what may be lacking in those rules. Next, we explore whether there is any way for arbitrator challenge decisions, or their collected wisdom, to be made available to the public, while preserving confidentiality. Finally, we discuss potential abuses of the arbitration selection process, concluding with suggestions for measures arbitral bodies can take to improve efficiency and prevent such abuses without impinging on a party's right to be heard.
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