Issues Surrounding Party-Appointed Arbitrators - Chapter 19 - AAA Handbook on Commercial Arbitration, Third Edition
Richard M. Mosk
Richard M. Mosk is an Associate Justice for the California Court of Appeal, Second Appellate District, Division 5, and was formerly a judge on the Iran-U.S. Claims Tribunal. He earned an A.B. from Stanford University “With Great Distinction” and a cum laude J.D. from Harvard Law School.
The role, responsibilities, and obligations of party-appointed arbitrators often are not known or considered by parties and arbitrators and may vary with the type and place of arbitration. Moreover, many issues concerning party-appointed arbitrators are still unresolved, and views on these issues differ. This article discusses certain law and practice issues that might be of interest to parties and practitioners.
In some arbitrations there are three or more arbitrators. Sometimes all of the arbitrators are selected by an independent institution-often the one administering the proceeding-or by another designated appointing authority. In many instances of multiple arbitrators, each party will appoint an arbitrator, with either those arbitrators or the parties or the appointing authority naming the remaining arbitrator(s). As discussed below, there are conflicting views concerning whether there should be party-appointed arbitrators at all.
There are different perceptions of the duties, obligations and practices of party-appointed arbitrators regarding whether the arbitrators are to be independent of the parties that appointed them; whether they are to be impartial; whether they may have publicly stated views that tend to favor one side of the dispute; whether and to what extent they may engage in ex parte communications with the parties that appointed them; the extent to which they must disclose certain relationships and interests; and compensation arrangements.