Because nonneutral arbitrators continue to be appointed by parties to domestic arbitrations, arbitrators should be familiar with the appointment process and other considerations concerning nonneutral conduct and disclosures.
This chapter addresses best practices associated with arbitrations involving nonneutral arbitrators. Additional chapters of the Guide—for example, Chapters 2, 4, and 13, respectively pertaining to arbitrator appointment and disclosures, arbitrators’ fees and expenses, and intratribunal relations—are relevant to a discussion of nonneutral arbitrators and, therefore, also should be considered by the reader.
I. ARBITRATOR SELECTION GENERALLY
A. Parties’ Arbitration Agreement
Because the use of nonneutral arbitrators continues as a permitted practice in domestic arbitrations in the United States, a well-drafted arbitration clause will state clearly whether the party-appointed arbitrators on a tripartite panel will be neutral or nonneutral. This distinction is particularly important because courts are obligated to enforce the selection process agreed upon by the parties, see, e.g., 9 U.S.C. § 5; UAA § 3; RUAA § 11(A); Cal. Civ. Proc. Code § 1281.6, and because an arbitration administrator can exceed its powers if the selection process is not in compliance with the parties’ agreement, see Brook v. Peak Int’l, Ltd., 294 F.3d 668, 673-74 (5th Cir. 2002) (“The AAA’s departure from the selection procedure . . . was utterly unwarranted.”).