Arbitrator interviews are becoming more and more the norm in Arbitrator Selection efforts. Most everyone understands that the “merits” are off the table for discussion. However, how far can one inquire as to a potential arbitrator’s knowledge of specific topics that may be foundational to those merits of the case? What types of challenges and objections can be made to your party-appointed arbitrator and how does one best address such challenges and objections? Once a party-appointed arbitrator has been selected, what are the guidelines to discussing chair appointment? What are the processes and methods to get the most appropriate Chair established for the Panel? What can and cannot disqualify a potential party-appointed arbitrator or Chair from being confirmed? This article addresses each of these questions and provides guidance to counsel in helping to ensure selection of the best arbitrator for the matter to be arbitrated.
I. THE PANEL SELECTION PROCESS
The two fundamental principles of arbitration are 1) the parties are free to select arbitrators of their own choosing and 2) the arbitrators are independent and impartial. Choosing the “correct” arbitrator is one of the most, if not the most, important parts of the arbitration establishment process. Because arbitrators have broad discretion to shape, determine and implement the procedures, including the manner and method to take evidence, to determine the credibility of the witnesses, and the power to determine the ultimate award, “an arbitration is no better than the arbitrators,” as so stated by John Hinchey and Troy Harris in their handbook on international construction arbitration.