Yulia Andreeva - is an associate with Debevoise & Plimpton LLP in New York. Her practice focuses on international arbitration and litigation in general and investment treaty disputes in particular. From 2001 to 2003, she clerked for the Permanent Court of Arbitration in The Hague, where she worked on large interstate disputes and commercial arbitrations.
“If you shoot at the king, you’d better not miss.” Every lawyer must bear this wisdom in mind when deciding whether or not to challenge an arbitrator appointed to resolve, by means of a final and binding decision, a legal dispute. The challenge to bringing a challenge, however, is that the U.S. legal system does not supply reliable procedural means for disqualifying arbitrators after the arbitral process has begun and before it has come to an end.
The U.S. Federal Arbitration Act (“FAA”) is silent about removing arbitrators while the proceedings are pending. Instead, it mandates the vacatur of an arbitral award where an arbitrator is biased or has engaged in certain misconduct. As a consequence, federal courts in the U.S. are wary of interceding to address arbitrator challenges in arbitrations and advocate a hands-off approach towards arbitrator conduct in general.
However, the resistance of federal courts does not completely preclude arbitrators from oversight. Institutional rules, state laws, equity and policy may intervene on behalf of an aggrieved party seeking a remedy against a biased arbitrator at the pre-award stage. There are tools, though often imperfect, to “shoot at the king” and not miss. This article discusses these tools and attempts to give advice to those who seek exceptions to the rule.