Academic journal article The Review of Litigation

The Selection of a Tripartite Panel: You Get What You Contract For

Academic journal article The Review of Litigation

The Selection of a Tripartite Panel: You Get What You Contract For

Article excerpt

INTRODUCTION..............767

I. THE ROLE OF THE ARBITRATOR...............768

II. SELECTION METHODS................769

A. Tripartite Panel with Party Appointed Arbitrators.................770

B. List Selection..................771

C Third Party Deference.......................772

III. VALUES OF ARBITRATION.......................772

A. Impartiality................................773

1. Appearance of Neutrality.......................774

2. Actual Impartiality............................775

B. Finality of the Judgment.......................777

C. Expertise of the Arbitrators...................778

IV. VALUES OF VARIOUS SELECTION METHODS...........778

A. Party-Appointment..............................779

1. Evident Impartiality...........................779

2. Actual Impartiality............................779

3. Finality of the Decision.......................781

4. Arbitrator Expertise...........................782

B. List Method....................................782

1. Evident Impartiality...........................782

2. Actual Impartiality............................782

3. Finality of the Decision.......................783

4. Arbitrator Expertise...........................783

C. Arbitration House Deference....................784

1. Evident Impartiality...........................784

2. Actual Impartiality............................784

3. Finality of the Decision.......................784

4. Arbitrator Expertise...........................784

CONCLUSION........................................785

INTRODUCTION

On September 14, 1872, a tribunal of five men entered a judgment against Great Britain of $15.5 million to be paid to the .United States in gold.1 This punishment arose from Great Britain's violation of international law by providing ships to the then-defeated Confederate Army, despite Great Britain's alleged position of neutrality and disinterest in the Civil War.2 The judgment entered by the tribunal, which has become known as the Alabama Arbitration, is widely credited with preventing another war between Great Britain and the United States. The conflicts avoided by arbitration are not always quite so drastic, but the public policy in favor of arbitration is substantial. The Federal Arbitration Act (FAA), enacted and codified in 1925, recognizes arbitration as a legitimate alternative to litigation that binds parties to a decision and, for the most part, relieves them from the possibility of appeal or judicial oversight.3 In addition to its relative informality and cost-effectiveness, arbitration affords disputing parties substantial autonomy in shaping the arbitral process. One of the many freedoms afforded to arbitrating parties is their ability to either choose the arbitrators themselves or choose the method by which the arbitrators are chosen. The ability to select arbitrators or the method by which arbitrators will be chosen is material not just to the outcome of the dispute, but also to the very fabric of arbitration.

This Note will first address the role of the arbitrator and make a comparison between arbitration and litigation generally. It will then survey the various arbitrator selection methods used by private parties and commercial arbitration houses, as well as the reasons why parties choose these methods. Third, this Note will assess some of the perceived values of arbitration, mainly those impacted by the selection of the arbitration tribunal. Fourth, this Note will apply these perceived values against the various available methods in order to analyze the costs and benefits of each method. Finally, this Note will argue that tripartite arbitration, one of the most popular panel selection methods, serves very few of the apparent values of arbitration.

I.THE ROLE OF THE ARBITRATOR

The role of the arbitrator is quasi-judicial in that it oversees the dispute in question and grants a binding award at the end. …

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