Without purporting to cover arbitrator disqualification comprehensively in this single post, it highlights some general standards for disclosure and disqualification of arbitrators. To be sure, arbitrator disqualification is closer to judicial disqualification than to lawyer disqualification (although, interestingly, even the analogy of arbitrator disqualification to judicial disqualification has long provoked contention). Nevertheless, arbitrator disqualification is interesting and at least presents occasional or distant analogies to lawyer disqualification.
First, arbitrators generally have both an initial and a continuing duty to disclose facts that might affect their impartiality in the eyes of the parties (or the reasonable person or several other variants). Second, and relatedly, several standards give guidance to arbitrators and parties as to when disclosure or disqualification is warranted owing to a conflict of interest (e.g., when a financial connection preexists, or arises mid-stream, between an arbitrator and one of the parties) or other grounds. These standards include, but are not limited to:
(1) AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes, Available Here. (For mediators, see the AAA/ABA Model Standards of Conduct for Mediators.)
(2) Uniform Arbitration Act § 12 (requiring that the arbitrator disclose any facts that, in the eyes of the reasonable person, would likely affect the arbitrator’s impartiality), § 23 (providing that awards may be subsequently vacated if the arbitrator suffered from “evident partiality,” among other grounds), Available Here.
(3) FINRA Arbitrator Oath and Disclosure Checklist, Available Here.
(4) United States Arbitration Act, 9 U.S.C. § 10(a) (“In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration . . . where there was evident partiality or corruption in the arbitrators, or either of them.”); see generally Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 150 (1968) (setting aside arbitration award because one of the arbitrators had a regular and significant, albeit “sporadic,” business relationship with one of the parties and noting that the “rule of arbitration and this canon of judicial ethics rest on the premise that any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias. We cannot believe that it was the purpose of Congress to authorize litigants to submit their cases and controversies to arbitration boards that might reasonably be thought biased against one litigant and favorable to another.”); Schmitz v. Zilveti, 20 F.3d 1043 (9th Cir. 1994). But see Positive Software Solutions, Inc. v. New Century Mortgage Corp., 476 F.3d 278, 282 (5th Cir. 2007) (en banc) (purporting to narrow the evident partiality test in Commonwealth Coating’s plurality opinion).