Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 20

THE PROBLEM OF THE “POLITICALLY CORRECT” ARBITRATOR

Steven J. Stein

I. Introduction

As arbitral, legal and procedural regimes have reached greater maturity, arbitration proceedings in large, complex commercial disputes have tended to become as expensive, complicated and protracted as cases litigated in domestic courts. One factor that has contributed to this undesirable condition is that many arbitrators have adopted a form of “political correctness” to avoid offending the parties that have chosen them.

II. The “Politically Correct” Arbitrator

This manifests itself in a reluctance to manage the process effectively, particularly by failing to impose reasonable limits on the nature and extent of proofs submitted by the parties. Allowing evidentiary matters irrelevant to the issues to be heard delays the final resolution of the case and unnecessarily increases the cost of the process.

Under the rules and practices of the major arbitral agencies, parties are given exceedingly wide latitude in the evidence they can offer in support of their claims and defenses.  Offers of proof, however, are subject to the arbitrators’ rulings as to relevance, materiality and admissibility of evidence.  The major institutional rules also give arbitrators broad discretion to apply law, rules of evidence under carefully prescribed procedures, or rules governing the conduct of the case.