Originally from Dispute Resolution Journal

In both the United States and England, the courts have generally promoted legal standards that broadly support arbitrators against a challenge from parties questioning their impartiality. In the following article, Laurence Shore discusses various legal standards on the issues of disclosure and impartiality by examining the relevant case law. He calls for more individual responsibility and less refuge in legal standards on the part of arbitrators. He says that because “independence and impartiality underpin the entire arbitral process,” arbitrators and arbitral institutions should be ever vigilant in making sure that there is not the slightest appearance of bias on their part.

The late journalist Fred Friendly, a passionate defender of the principle of freedom of speech, observed that just because a newspaper had the right to print a particular story it was not relieved of the responsibility to consider whether it should print the story. Having the right to do something did not mean, he emphasized, that it is the right thing to do.1

The Friendly doctrine may also be applied to good effect outside the First Amendment context. In the field of international commercial arbitration, the doctrine has particular relevance to an issue that is fundamental to the arbitral process: preserving the independence and impartiality of arbitrators.

Recent court cases in England and the United States have promulgated standards that afford broad support for arbitrators whom a party seeks to challenge on grounds of bias. The Anglo-American approach enables arbitrators and arbitral institutions to take a strong stand against recusal if they wish to exercise the full extent of their rights.

Although the American standard for disqualification of a sole arbitrator or a tribunal chairman may be less stringent than the English standard, in neither jurisdiction will a showing of an “appearance of bias” suffice. Both jurisdictions have instead established the more onerous burdens applicable to the disqualification of national court judges. However, as the Friendly doctrine reminds us, the full exercise of rights can have dangerous policy consequences. This is the case when the independence and impartiality of arbitrators are at stake.

Independence and impartiality underpin the entire arbitral process. Without their assured vitality, arbitration as the favored dispute resolution method in international commercial contracts will have a troubled future. The parties to an arbitration want complete confidence that they are receiving “private justice.” Because “private” means that the normal array of public protections (for example, appellate review) are generally unavailable, arbitrators and arbitral institutions should be proactive in establishing at the outset of an arbitration that there is not the slightest reason that a party could question independence and impartiality.

Indeed, this was Justice Hugo Black’s view in the only U.S. Supreme Court decision to consider the issue: