Arbitrator Disclosure and a Duty to Investigate? - Part 2, Chapter 6 - AAA Yearbook on Arbitration and the Law - 23rd Edition
Mark Kantor is an Arbitrator and Mediator. Until he retired from Milbank, Tweed, Hadley & McCloy, he was a Partner in the Corporate and Project Finance Groups of the Firm. He teaches as an Adjunct Professor at the Georgetown University Law Center. He is also a Senior Research Fellow at the Vale Columbia Center for Sustainable International Investment (a joint undertaking of Columbia Law School and the Earth Institute at Columbia University). Additionally, Mr. Kantor is Editor-in-Chief of the online journal Transnational Dispute Management.
Mr. Kantor is a member of the Board of Directors of the American Arbitration Association, Chair of the D.C. Bar International Dispute Resolution Committee and a Fellow of The Chartered Institute of Arbitrators. He is listed in Who's Who Commercial Arbitration, Chambers USA (International Arbitration), Guide to the World's Leading Commercial Arbitration Experts and Best Lawyers in America. Mr. Kantor is also a member of the Editorial Board of Global Arbitration Review, the Board of Editors of the Journal of World Energy Law and Business and the ADR Advisory Board of the International Law Institute. Among other publications, Mr. Kantor is the author of Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence (Kluwer 2008), named Best Book of 2008 in the OGEMID Awards, and “A Code of Conduct for Party-Appointed Experts in International Arbitration—Can One Be Found?” 26 Arbitration International 323 (2010), named Best International Dispute Resolution Article of 2010 in the OGEMID Awards. Additional information is available at www.mark-kantor.com.
Considerable ink has been spilled discussing the nature of an arbitrator‘s duty under the Federal Arbitration Act (FAA) to disclose potential ―conflict of interest‖ information. Of equal importance, but less often considered, is whether the arbitrator or one of the parties to the arbitration has a duty to investigate relationships for purposes of possible conflicts disclosures. The 2007 Second Circuit Court of Appeals decision in Applied Industrial Materials Corp. v. Ovalar Makine Ticaret ve Sanay, A.S.1 (known as AIMCOR) and the 2010 decision of the Ninth Circuit Court of Appeals in Lagstein v. Certain Underwriters at Lloyd’s, London2 offer an opportunity to assess the extent of an arbitrator‘s or a party‘s duty to investigate possible disclosable relationships. As that assessment shows, the existence of a duty for arbitrators to investigate is clearer in professional ethics rules than in FAA jurisprudence. The extent to which an arbitration party is responsible for investigating an arbitrator‘s background is even less clear.