The Problem of the “Politically Correct” Arbitrator - Chapter 20 - AAA Handbook on Commercial Arbitration, Third Edition
Steven J. Stein is Counsel to the Geneva law firm of Budin & Partners. He serves on the American Arbitration Association’s roster of neutrals for commercial and international cases. He has served on ICC tribunals and as counsel to parties in arbitrated matters for more than 25 years. Stein holds a B.S. from Cornell University and an LL.B. from New York University School of Law. He is the author of Enforcing Foreign Arbitral Awards, INTERNATIONAL ARBITRATION CONFERENCE, Cairo, Egypt (March 1995) and The Drafting of Effective Choice of Law Clauses, JOURNAL OF INTERNATIONAL ARBITRATION (September 1991).
THE PROBLEM OF THE “POLITICALLY CORRECT” ARBITRATOR
Steven J. Stein
As arbitral, legal and procedural regimes have reached greater maturity, arbitration proceedings in large, complex commercial disputes have tended to become as expensive, complicated and protracted as cases litigated in domestic courts. One factor that has contributed to this undesirable condition is that many arbitrators have adopted a form of “political correctness” to avoid offending the parties that have chosen them.
II. The “Politically Correct” Arbitrator
This manifests itself in a reluctance to manage the process effectively, particularly by failing to impose reasonable limits on the nature and extent of proofs submitted by the parties. Allowing evidentiary matters irrelevant to the issues to be heard delays the final resolution of the case and unnecessarily increases the cost of the process.
Under the rules and practices of the major arbitral agencies, parties are given exceedingly wide latitude in the evidence they can offer in support of their claims and defenses. Offers of proof, however, are subject to the arbitrators’ rulings as to relevance, materiality and admissibility of evidence. The major institutional rules also give arbitrators broad discretion to apply law, rules of evidence under carefully prescribed procedures, or rules governing the conduct of the case.