You're general counsel at a busy company and it's just an ordinary business day… until a Notice of Claim arrives on your doorstep. Proceedings commence and you get a letter from the other side proposing that you meet to interview the prospective arbitrator. Surely not…
There are a wide variety of reasons why arbitration may be preferable to litigation. The ability to select your arbitrator is one of those reasons.
Anyone who has been involved in litigation or arbitration knows the impact that the judge or arbitrator will have on the resolution of the dispute. While judges and arbitrators are required to bring an impartial mind to every case, the experience and expertise of each judge or arbitrator will often have a substantial impact on the conduct and outcome of a matter.
However, the interview of a prospective arbitrator obviously has the potential to give rise to actual or perceived bias. It's easy to see why having a 40 hour "chat" with a potential arbitrator at a resort without the other party present makes the arbitrator begin to look like a "hired gun", particularly when that arbitrator later hands down an award in favour of the interviewing party.
However, because the benefits of interviewing arbitrators are clear, the Chartered Institute of Arbitrators recently released guidelines on the interviewing of prospective arbitrators ('the Guidelines') which are designed to prevent the interview of arbitrators from giving rise to actual or perceived bias.
A corollary of the principle of party autonomy in arbitration is the parties' right to select their preferred arbitrator (the party-appointed arbitrator).
The interviewing of arbitrators, while frowned upon by some, has been increasingly used to assist parties in making an informed choice in the exercise of their right of appointment.
Interviewing arbitrators may also have the more tangible benefit of ensuring that the arbitrator chosen is one with sufficient legal knowledge and expertise. This will have an important effect on the quality of the arbitration proceedings, the arbitrator's ability to nominate an appropriate candidate for presiding arbitrator (where there is a panel of three) and may ensure that adequate consideration is given to the legal case and culture of both parties.
Interviewing your arbitrator
The Guidelines set out a number of rules that can be followed to minimise the risk of bias and potential challenge of the final award.
Mostly, the Guidelines are straightforward. Interviewing an arbitrator in the absence of the other party over dinner and drinks at Tetsuya's is out. It is therefore a good idea to keep a record of the interview which is then provided to each party and the arbitral body (where there is one).
The Guidelines endorse the following issues for discussion:
the names of the parties in dispute
the general nature of the dispute
sufficient detail of the subject matter of the dispute
the expected timetable for the proceedings
the language, governing law and seat of the arbitration
the proposed arbitrator's experience, expertise and availability.
No-go areas are:
the specific circumstances or facts giving rise to the dispute
the positions or arguments of the parties
the merits of the case.
Good idea or bad idea
Good idea! There are many benefits to interviewing arbitrators, but it can be a tricky business. In order to ensure that the interview does not result in actual or perceived bias of the arbitrator, the interview must be conducted very carefully.
The Guidelines, while not mandatory, give you a good idea where to start. Following them will help ensure that parties wishing to interview prospective arbitrators do so without the risk that any final award handed down in their favour is challenged by the unsuccessful party or parties.
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