AWOL arbitrator? It happens sometimes. In 2009, for example, the National Arbitration Forum accepted the terms of a consent decree with Minnesota’s attorney general under which it would no longer administer consumer arbitrations. The attorney general had accused the company of working alongside credit card companies to get them to put unfair arbitration clauses in the fine print of their contracts and to appoint the NAF as the arbitrator.
Over the years, courts have struggled with the question of whether arbitration should proceed when the arbitrator the parties named is no longer available. As one commentator, Daniel Sito, put it in a 2014 University of Chicago Law Review article: “A federal circuit split and a wide divergence in state court opinions have materialized over whether these contractual forum-selection provisions are integral or merely ancillary.”
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