Chapter Two: Appointment, Disclosures, and Disqualification of Neutral Arbitrators - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition

Editor John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. He has taught arbitration law as an Adjunct Professor in several law schools, including Pepperdine, Loyola, Creighton, and University of Missouri–Kansas City, and has made CLE presentations on ADR topics throughout the world, including, most recently, at the USC/JAMS Advanced Arbitration Institute, and at training programs sponsored by the AAA concentrating on more challenging topics such as arbitrability and jurisdiction, federal preemption, the power to summon nonparties, the preclusive effect of arbitral awards, the role of law in arbitral deliberations, and presentation of damages in the arbitral forum.

Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million.

Contributors:

James H. Carter, New York, New York

Richard Chernick, Los Angeles, California

Peter D. Collisson, Orange County, California

Paul J. Dubow,San Francisco, California
Ruth V. Glick, Burlingame, California

Robert A. Holtzman, Los Angeles, California

June R. Lehrman, Los Angeles, California

James R. Madison, Menlo Park, California
Bruce E. Meyerson, Phoenix, Arizona

Michael S. Oberman, New York, New York

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Description:

In addressing appointment and disclosure issues, the goals of arbitrators are (1) to comply with applicable law, ethical rules, institutional rules, and party agreements; (2) to ensure that they are, and reasonably appear to be, impartial and independent; and (3) to minimize the risk of a later successful challenge to the award for evident partiality.

I. INTRODUCTION

To ensure a fair arbitration process, neutral arbitrators must be impartial and independent. An effective disclosure and appointment process, in compliance with applicable law, institutional rules, ethical standards, and the parties’ agreement, is essential for retaining public confidence in the arbitral process and ensuring the enforceability of arbitration awards. As revised in March 2004, the AAA and American Bar Association (ABA) Code of Ethics for Arbitrators in Commercial Disputes (AAA/ABA Code) sets forth generally accepted standards of ethical conduct for commercial arbitrators, including standards relating to appointment, disclosure, and disqualification of arbitrators. This chapter examines those subjects in relation to neutral arbitrators. Chapter 3, infra, discusses appointment, disclosure, and disqualification of arbitrators who are not expected to act as neutrals. Many of the topics in this chapter also are addressed in Chapter 15, infra, pertaining to intratribunal relations between arbitrators serving on tripartite panels.