An Evident Contradiction: How Some Evident Partiality Standards Do Not Facilitate Impartial Arbitration

By Roberts, Braydon | Journal of Corporation Law, Spring 2018 | Go to article overview

An Evident Contradiction: How Some Evident Partiality Standards Do Not Facilitate Impartial Arbitration


Roberts, Braydon, Journal of Corporation Law


I. INTRODUCTION II. BACKGROUND        A. The Evident Partiality Standard            1. Commonwealth Coatings and Interpretation Issues            2. The Reasonable Person Majority            3. Minority Approaches            4. An Alternative Approach Proposed            5. Evident Partiality When a Contract Determines How the              Arbitrator is Selected       B. NFLMC and Tom Brady's Claim Commissioner Goodell was Partial            1. Arguments for and Against Evident Partiality III. ANALYSIS       A. The Reasonable Person Standard is the Majority and Likely to         Remain as Such       B. Brady's Argument in NFLMC       C. The Actual Bias Standard Led to a Partial Arbitration in NFLMC       D. Giving Deference to the Contract Does Not Justify the         Partial Arbitrations Caused by the Actual Bias Standard       E. The Reasonable Person Standard Would Alleviate Some of the         Problems of Actual Bias IV. RECOMMENDATIONS       A. Recommendations for Federal Circuit Courts       B. Recommendations for the Supreme Court of the United States       C. Recommendations for Parties When Bargaining for an         Arbitrator Selection Clause       D. Recommendations for Parties Able to Select the Arbitrator V. CONCLUSION 

I. INTRODUCTION

As arbitration becomes more important in settling legal disputes, (1) the methods available to vacate an unfavorable decision will likely become more popular. one such method is for a court to determine that the arbitrator in an arbitration was evidently partial. (2) The evident partiality standard is most often applied when a party learns after its arbitration that an arbitrator had some relationship with the opposing party he or she did not disclose. (3) Though it is rarer, parties can also argue evident partiality if they know of an arbitrator's relationship to a party before the proceeding. (4) In either case, the party appeals the award, claiming the arbitrator's relationship to the opposing party influenced the result. The Supreme Court's only decision on evident partiality, Commonwealth Coatings Corp. v. Continental Causality Co., came in 1968 (5) and did not specify how close a party-arbitrator relationship needed to be to make the arbitrator partial. (6) What was clear from the decision was that the Court believed Congress' goal for creating the standard was to have impartial arbitration. (7) The Court's inconclusive decision on evident partiality has caused varying interpretations by the circuit courts, as they try to apply a standard faithful to Commonwealth Coatings while maintaining Congress' goal of impartial arbitration. (8)

This Note will explore the evident partiality standard with a particular focus on how the standard is applied when a contract determines how the arbitrator is selected. Part II will explore the history of the evident partiality standard and the three interpretations of the standard that have been articulated by courts. It will also explore the facts, decision, and standard applied in National Football League Management Council v. National Football League Players Association (hereinafter NFLMC), a case where a contract determined how the arbitrator was selected. Part III will analyze each of the articulated standards to determine whether they accomplish Congress' goal of impartial arbitration. It will also examine how the standard applied in NFLMC helped ensure the decision was maintained despite a partial arbitrator. Part IV will recommend that the reasonable person standard be universally adopted by courts for evident partiality because it best ensures Congress' goal of impartial arbitration.

A few Notes have explored evident partiality. (9) None have explored in-depth evident partiality when a contract determines how the arbitrator is selected. Nor have they recommended the reasonable person standard be accepted as the evident partiality standard in all circumstances.

II. BACKGROUND

This Part will explore the history of the evident partiality standard, starting with the Supreme Court's only decision on it in Commonwealth Coatings. …

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