A New Code of Ethics for Commercial Arbitrators: The Neutrality of Party-Appointed Arbitrators on a Tripartite Panel
Byrne, Olga K., Fordham Urban Law Journal
This natural right of self-regulation is a precious possession of a democratic society, for it embodies the principles of independence, self-reliance, equality, integrity, and responsibility, all of which are of inestimable value to any community. (1) It is a call for self-reliance, a way of living in harmony with our neighbors, an endorsement of voluntarism. (2)
Having an impartial and neutral judge resolve disputes has been a fundamental goal in the American justice system. (3) But in some arbitrations, party-appointed arbitrators on a tripartite panel are expected to act as "non-neutrals" and may be predisposed to decide in favor of the party who appointed them, while the third arbitrator is neutral. This system presents a problem to those who feel that all adjudicators should be neutral when making a decision. In international arbitration, for example, the rule is firm that arbitrators must act in an independent and impartial manner, unless the parties agree otherwise. (4) Since increasing numbers of commercial disputes are international, professionals within the international community have urged that domestic commercial arbitration standards should more closely resemble international norms. (5)
The finality of arbitration is another reason for aspiring to a higher standard of neutrality. Arbitration awards are final and binding, subject to very limited review by the courts. (6) Wide discretion is left to the parties, their attorneys and the arbitrators to fashion the procedure as they wish, without any judicial interference, (7) The binding nature of arbitral awards requires a clear ethics code to create some behavioral benchmark and uphold the integrity of arbitration practice. (8)
Currently, the American Arbitration Association ("AAA") and the American Bar Association ("ABA") are working to revise the existing ethics code for commercial arbitrators in a way that encourages neutrality of all arbitrators. This Note refers to a text prepared by a team from the AAA and the ABA (herein called the "2003 Revision"). That text is expected to become effective March 1, 2004, but it must be recognized that at the time of this writing (October 1, 2003), it had not been finally approved by either organization. The text had been approved by the Executive Committee of the AAA, but was subject to further refinement, and it had not yet been acted on by all of the concerned bodies of the ABA. Meanwhile, the existing code of ethics remains in effect.
In the following analysis, Part I of this Note describes the importance of the tripartite panel and the new standards that it is expected will be adopted in a revised code of ethics for commercial arbitrators. Part II examines the opposing arguments concerning the role of party-appointed arbitrators with respect to neutrality. Proponents of an all-neutral panel urge that our judicial value system should allow no other alternative, while others support the use of non-neutrals when parties mutually agree to exercise their autonomy to do that. Part III proposes that the revisers educate participants in the arbitral process of the new standards demanded of all arbitrators, so as to maintain confidence and stability in arbitration. Although arbitration is a private process and its construction should be left substantially to the preference of the parties, ethical norms create faith in the system and provide a reliable foundation upon which to structure specific mechanisms for resolution.
I. THE ARBITRATION PROCESS
Arbitration is an alternative to litigation whereby parties voluntarily submit their dispute to a tribunal of their own choosing to obtain a judicially enforceable decision. (9) It is often chosen over litigation for its speed, cost-effectiveness, privacy, and less hostile atmosphere than the courts. (10) The parties may decide the scope and content of the arbitration, define its procedures, and choose the location of the arbitration by specifying these stipulations in the arbitration agreement. …