ACR-GNY - Right to Challenge a Party Appointed Arbitrator

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Right to Challenge a Party Appointed Arbitrator

Right to Challenge a Party Appointed Arbitrator

Wednesday, September 17, 2025 7:50 AM | Anonymous

What is ‘Design for Manufacturing’? – Polaris MEP

Does a party have the right to challenge a party appointed arbitrator for conflicts? What should be the standards, if any, for removal? Are the standards different than those for challenging arbitrators appointed by an arbitral institution? Are the standards different for non-neutral arbitrators?

What are your thoughts?

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Comments

Wednesday, September 17, 2025 9:59 AM | Jim Purcell

Yes. Even assuming for the moment that the party-appointed arbitrator is to be non-neutral, there may be reasons why he or she could not "fairly" hear or decide. Even non neutral party appointed arbitrators owe it to the parties to fairly review the evidence and rule in accordance with the evidence and the law. They owe that to the arbitral process. I don't think I'm being naive, and of course, in close cases, they favor their appointing party.

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Wednesday, September 17, 2025 10:07 AM | Alan Pralgever

I think the law concerning conflicts control, and if there is a conflict that controls even if one party picks the arbitrator. It's not such a burden as the party just gets to select someone else.

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Wednesday, September 17, 2025 10:30 AM | Paul Mason

An interesting option is the "blind appointee" where the institution does not tell the arbitrators which party appointed them. There are some cases where the arbitrators will figure it out, but many where it will not be apparent.

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Wednesday, September 17, 2025 10:43 AM | Nasri H Barakat

I would think that the standards should be different for party appointed arbitrators and for neutrals. To illustrate I remember two cases. The first was during a preliminary hearing where the party that appointed me challenged my counterpart on the grounds that he had previously been appointed by the same party as an expert witness. The problem was not disclosure but the fact that he had been an expert witness for the same party in an unrelated matter. During the break I suggested that the challenge be dropped because the arbitrator was appointed as an advocate. The challenge was dropped and the case proceeded. The second case was much more interesting. I was appointed by the AAA/ICDR as a presiding arbitrator in a matter. The case manager stated unequivocally that any challenge raised to my appointment should be addressed to the case manager with no copy to the arbitrator. Nevertheless, few days later I receive a copy of an email send by one party to all stating that Mr Barakat's integrity is unquestionable and that my appointment should proceed without further delay! I was astonished because the attorney knew exactly was he was doing and sought to derail my appointment with his so called "praise" for my integrity. Needless to say that the case manager withdrew my appointment and I imagine that the case proceeded with another arbitrator. Some institutions use the number of appointments by one party or the income derived to challenge the appointment but these criterions are flawed and often are subject to objections by the arbitrator.

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Wednesday, September 17, 2025 11:12 AM | Kevin Sido

If the arbitrator is an attorney, I believe that the rules of professional conduct apply to the service as an arbitrator (as opposed to obvious application to traditional advocacy roles). If the parties understand that their appointed arbitrators are indeed advocates with no pretense, that is an easy case. The harder case is the party appointed arbitrator who is understood to be and required to be neutral; that arbitrator's ability to serve should be measured under the same standards as the institution appointed arbitrator in my opinion.

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Wednesday, September 17, 2025 11:14 AM | Michael Lampert

There is some case law that non-neutrals are subject to a different standard.
I know of one very odd case where a party challenged its own appointed arbitrator when that arbitrator's affirmative disclosures revealed an issue not uncovered in the party's own pre-appointment vetting.

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Wednesday, September 17, 2025 11:17 AM | Mark Bunim

Unless the two wings are Cannon X arbitrators (non-neutral) then a party should be able to challenge the other party's wing appointee upon the grounds of evidence of bias in their background. AAA R-18 (a) and 19 (a) clearly spell this out and R-19 sets forth a procedure for challenge. In short, all arbitrators under AAA rules are to be neutral, except under R-14 (b). However, the U.S. Ct. of Appeals for the 2d Circuit does not agree with this proposition. See, Certain Underwriting Members of Lloyds v. Fla. Dept. of Fin. Servs., 892 F.3d 501 (2018), which takes a different viewpoint.

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Wednesday, September 17, 2025 12:27 PM | Hon. Deanne M. Wilson

I have regarded my obligation, whether party-appointed or administration-appointed, as being one that requires fairness and independence. That should be the touchstone for either type of appointment. As far as conflicts are concerned, conflicts may exist more frequently for a party-appointed arbitrator but they should not serve as a disqualifying conflict unless the nature of the conflict is such that it patently cannot exist alongside fairness and independence,

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Wednesday, September 17, 2025 12:38 PM | Geoffrey BH

There are different traditions. In the past party-appointed arbitrators were expected to argue their appointor's position and seek to find agreement. only if they could not agree would a neutral umpire be appointed to resolve the impasse.

Aspects of this philosophy seem to remain today in some jurisdictions and some commercial groups.

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