Little actual intelligence is available about the decisions of arbitral institutions on challenges to arbitrators. Arbitral institutions tend not to elaborate their procedures for ruling on challenges in their Rules or their publications. And the great majority of the more prominent institutions, probably accounting for a majority of international commercial arbitrations by volume of commerce if not sheer number of cases, do not issue reasoned decisions on challenges and do not publish summaries of their decisions for consumption by practitioners. These features of the arbitration landscape regularly draw criticism, but attract little reform. The London Court of International Arbitration has been a pioneer; it has for many years issued reasoned decisions on challenges, and has published digests of those decisions for the period 1996 to 2010 (Arbitration International, Vol. 27, No. 3, 2011). A project has been afoot recently to create a database of decisions on arbitrator challenges. (See James H. Carter, Reaching Consensus on Arbitrator Conflicts: The Way Forward, Dispute Resolution International, Vol. 6, No. 1 at p 17 (2012)).
One limitation on the reliability of information in such a database would be that arbitral institutions rather than the counsel or arbitrators involved in a challenge would be the primary sources of information. Where a challenge has been unsuccessful, and the case proceeds, the challenge process is itself a confidential aspect of the proceedings (by custom if not by rule or by law) and neither counsel nor the arbitrators will be inclined to expose to one another their impressions of the matter while the case or any post-award litigation remains open. But the successful challenge stands in a somewhat different posture, at least for the rejected arbitrator who takes no part in the proceedings. Perhaps the larger portion of such successful challenges occur when the parties discover a matter that the arbitrator has failed to disclose. In such cases we would not expect to see public commentary by the arbitrator for the obvious reasons. But on those occasions when the successful challenge is based on a matter that the challenged arbitrator did disclose, completely and candidly, the arbitrator will not inevitably have a self-protective reason to keep the matter out of public view.
Today I report on such a case. All names, except my own, are omitted. But to escape the awkwardness of using the first person pronoun, your Commentator herein assumes the mantle “Arbitrator X.”
Arbitrator X was nominated as a co-arbitrator by the Respondent, in an international case administered by a major arbitral institution (having its seat outside the U.S.) under its rules. The seat of the arbitration was within the United States, and the law governing the contract was the law of an American state. Claimant was an American company represented by American counsel.
Arbitrator X made the following initial disclosures concerning his relationship with an attorney who was acting as co-counsel for the Respondent: (1) that they had been acquainted professionally for about ten years through an international bar association of which both were members, and in which they had functioned collaboratively in leadership roles on one of that bar association’s committees, (2) that during that ten year span they had had lunch or dinner when visiting the other’s home city on perhaps six to eight occasions, of which three were dinner engagements that also included the spouse of one or the life partner of the other, (3) that in 2010, Arbitrator X upon the invitation of another professional acquaintance in the home city of the counsel in question, had joined a group of approximately ten lawyers and businessmen, collectors and aficionados of fine wines, including the counsel in question, who gathered in a restaurant for wine-tasting dinners four times per year, and (4) that Arbitrator X and the counsel in question were regular attendees at these dinners.
After the institution had issued its unreasoned decision accepting the challenge and refusing to confirm the nomination, Arbitrator X had occasion to review the decision with a number of thoughtful observers. One remark made or confirmed by a number of persons was that experienced European arbitrators would not have made the disclosures of social contact with Respondent’s counsel that were made in this instance by Arbitrator X.
If indeed that is the case, then one question for examination is why arbitrators from Europe would view as inconsequential a degree of social contact between the nominating counsel and the party-appointed arbitrator that an American arbitrator considered appropriate to disclose and that the institution considered sufficient to deny Respondent its first choice of an arbitrator. Perhaps European arbitrators more pervasively than their American colleagues believe that their duty to act impartially even where they have some degree of personal affinity with the appointing counsel is so fundamental that it would be unjustifiable for the other party to have any doubts about the arbitrator’s impartiality . Perhaps American arbitrators remain strongly influenced by the legacy of explicitly biased party-appointed arbitrators in domestic commercial arbitration prior to the 2004 amendments to the ABA-AAA Code of Ethics for Arbitrators, and perhaps it is that legacy that impels them to make fulsome disclosures so that the parties may be more fully satisfied that arbitrator conduct is not influenced by undisclosed bias.
A related question is why American arbitrators might find inadequate, as a guide to disclosure in such circumstances, the relevant guideline in the IBA Rules on Conflicts of Interest in International Arbitration. In the IBA Orange List, disclosure is required, and justifiable doubts about an arbitrator’s impartiality may possibly be found t0 exist, if a “close personal friendship” exists between the arbitrator and counsel, “as demonstrated by the fact that they regularly spend considerable time together unrelated to professional work commitments or the activities of professional associations or social organizations.” (Guideline 3.36).
Arbitrator X might well have been persuaded that these circumstances were outside Guideline 3.36. In regard to the oenophile dinners mentioned in the disclosure, even a one-on-one dinner four times per year for a total of 10 hours spent together per year is arguably not what the Guideline means by “considerable time.” And if the time were spent substantially by one international arbitration lawyer catching up with another about developments in their respective practices, and each hopes that the relationship will lead to professional opportunities, how could this be “unrelated to professional work commitments”? As the gatherings were in fact group dinners for ten, the contact between Arbitrator X and counsel, when both attended, was generally much more diluted than what Guideline 3.36 seems to mean by time spent “together.”
But there were good reasons to regard Guideline 3.36 as inadequate to decide whether disclosure was required. Time spent together is unlikely to be a reliable indicator of whether a friendship is “close” or “personal” in the wide professional circle of an international arbitrator. The friends one considers “close” and “personal” may live so far away, or have such busy and complicated lives, that regular visits are not even possible. And yet such friendships may be “close” and “personal” as evidenced by the fact that there are exchanges on a daily basis of e-mails or text messages about their families, pets, spouses, ex-spouses, recently attended concerts and sporting events, holiday celebrations, etc.
Arbitrator X did not have such a relationship with the counsel in question. If he did, he would have turned down the appointment. But if there was no such relationship, and IBA Guideline 3.36 did not fit, what was the rationale for disclosure? The answer, I believe, is that personal affinity, sympathy, and affection are derivatives of exposure. It is logical to believe that such feelings may intensify with frequency of exposure, and so it makes sense for arbitrators to make disclosure of the nature and frequency of their exposure to an appointing counsel when the exposure has been more than occasional and random. Such exposure can be objectively quantified and reported, whereas it is more difficult to provide subjective assessments of the arbitrator’s feelings toward an appointing counsel. Disclosure of the frequency of contact permits counsel to inquire further if they care to do so, and allows the arbitrator to avoid the negative inferences that could arise if the frequency of contact were later discovered rather than initially disclosed.
But what about the institution’s decision to accept the challenge and reject Arbitrator X? The institution did not seek any additional facts about the relationship, from Arbitrator X or the counsel in question. The disclosure itself was the entire factual record for the challenge. If the regular contact between arbitrator and counsel had instead occurred at monthly lunches of the New York International Arbitration Club, is it fair to assume that the challenge would have been rejected, irrespective of the content of their communications on those occasions? If the arbitrator and counsel had been fellow members of the Board of Trustees of a non-profit organization, seeing one another regularly at Board meetings and fund-raisers for the organization, would the result have been different? And is it in fact the unstated position of the institution (at least in regard to pre-appointment challenges) to treat the hybrid social/business context of the regular contact between counsel and arbitrator as a proxy for the closeness of their personal relationship, in substantial part because the institution prefers not to invest the resources needed to develop the relevant facts further, but instead prefers to invite the affected party to make another nomination? That could be a defensible position for the institution to adopt — if indeed that is the position, and if it were adopted explicitly so that arbitrators and counsel might make more informed assessments of the risks attendant upon social contact with professional colleagues, and their obligations to disclose such contact.
I submit that this case illustrates several shortcomings in the disclosure and challenge system. One, certainly, is that the IBA Guidelines while enormously useful threaten to function as a Code of Conduct for arbitrators who prefer not to analyze disclosure issues thoroughly and/or prefer to avoid disclosure where it is avoidable. Another is that institutions, while quite properly setting their own standards for what might be viewed as justifiable doubts about impartiality, do a disservice to their own credibility by issuing unreasoned decisions and delaying if not avoiding entirely the publication of summaries of decision or explanatory notes. The consequence is that challenge decisions lack predictive value from one case to the next, may appear to be arbitrary, and leave counsel and arbitrators to speculate (as has been done here) about the reasons a particular position was adopted in a particular case.