Section 10(a)(2) of the Federal Arbitration Act (the “FAA”) authorizes courts to vacate awards “where there was evident partiality or corruption in the arbitrators, or either of them. . . .” 9 U.S.C. 10(a)(2). The next few instalments will focus on arbitrator neutrality and evident partiality, a later one on corruption. What constitutes evident partiality and under what circumstances is a controversial and sometimes elusive topic. We’ve written about it extensively over the years, including here, here, here, and here, as well as in other publications. The author has briefed, argued, or both, a number of U.S. Courts of Appeals and federal district court cases on the subject over the years, including, among others, Certain Underwriting Members of Lloyds of London v. State of Florida, Dep’t of Fin. Serv., 892 F.3d 501 (2018); and Nationwide Mutual Ins. Co. v. Home Ins. Co., 429 F.3d 640 (2005).
Evident partiality has been the subject of numerous judicial decisions setting forth various standards and applying them to a wide range of fact patterns. The decisions are not easy to reconcile (some may be irreconcilable) and the standards are often of limited utility. Matters are complicated by judicially created rules concerning disclosure of potential conflicts of interest and the consequences that may or may not flow from those rules.
But “evident partiality” may be easier to grasp if we focus not on abstract standards or ethical constructs, but on the parties’ reasonable expectations of neutrality. Surprisingly, many courts address the subject of “evident partiality” without expressly discussing this important consideration, even when it appears to have been a significant but unstated part of the decision-making calculus. Others have expressly used the parties’ agreement and attendant expectations of neutrality as a guidepost.
Understanding the parties’ reasonable expectations of partiality is only half the battle. One must also understand how those expectations are enforced through judicially created rules governing disclosure and waiver of conflicts of interest, and the relevance of those rules to a motion to vacate an award under FAA Act Section 10(a)(2).
In this instalment of the FAQ Guide our focus is on the parties’ reasonable expectations of arbitrator neutrality; evident partiality standards and how they are supposed to enforce reasonable expectations of neutrality without undermining arbitral finality; differences between evident partiality standards and judicial impartiality standards; and the differing expectations of arbitral neutrality that may attend tripartite arbitration. One or more subsequent instalments will discuss arbitrator disclosure procedures and requirements, which are designed to implement and enforce evident partiality standards; examples of what does and does not constitute evident partiality; and procedural issues pertinent to evident partiality challenges.
THE PARTIES’ REASONABLE EXPECTATIONS OF NEUTRALITY
The principal purpose of the FAA is to enforce arbitration agreements as written. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947 (1995). Parties are largely free to structure their arbitration agreements as they see fit, and that freedom extends to selecting the decision makers, establishing their qualifications, and agreeing on how impartial they should be. See National Football League Mgmt. Council v. National Football League Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016) (“NFL Council”) (“[A]rbitration is a matter of contract, and consequently, the parties to an arbitration can ask for no more impartiality than inheres in the method they have chosen.”) (citing cases); Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 679 (7th Cir.), cert. denied, 464 U.S. 1009 (1983) (Posner, J.) (“parties … choose their method of dispute resolution, and can ask no more impartiality than inherent in the method they have chosen.”) (citation omitted).
Inherent in the arbitral bargain is decision making, or decision tie-breaking, by at least one neutral decision maker. Single arbitrators are required under the FAA to be neutral unless the parties otherwise agree. See, e.g., Morelite v. N.Y.C. Dist. Council Carpenters, 748 F.2d 79, 81-85 (2d Cir. 1984). In tripartite arbitration, one arbitrator (usually designated the umpire, chair, or third arbitrator) is ordinarily required to be neutral, while party-appointed arbitrators are presumed to be non-neutral, except to the extent otherwise required by the parties’ arbitration agreement. See Certain Underwriting Members, 892 F.3d at 510-11; Sphere Drake Ins. v. All American Life Ins., 307 F.3d 617, 622 (7th Cir. 2002); Trustmark Ins. Co. v. John Hancock Life Ins. Co. (U.S.A.), 631 F.3d 869, 872-74 (7th Cir. 2011). Arbitration provider rules, which may govern arbitrator qualifications in appropriate cases, may provide different rules. For example, the JAMS and American Arbitration Association rules presume all arbitrators on a tripartite panel to be neutral, unless the parties agree otherwise. See, e.g., JAMS Comprehensive Arbitration Rules & Procedures R. 7 (July 1, 2014); American Arbitration Association Commercial Arbitration Rules and Mediation Procedures R-18(a) & (b) (October 1, 2013).
Section 10(a)(2) of the FAA—which authorizes federal district courts to vacate arbitration awards “where there was evident partiality…in the arbitrators…”—imposes in part and enforces these neutrality requirements. Section 10(a)(2) establishes that parties who agree to arbitrate can legitimately expect that neutral arbitrators will meet a certain minimal standard of arbitral impartiality, and that arbitrators not appointed as neutrals can, in appropriate circumstances, be held to a substantial, material breach of a stipulated arbitrator qualification requirement related-to, but not necessarily coextensive with, neutrality. See Certain Underwriting Members, 892 F.3d at 510-11; Sphere Drake, 307 F.3d at 622; Trustmark, 631 F.3d at 872-74.
Many consider the requirement that an arbitrator be “neutral” to include two components: the arbitrator must be (a) impartial and (b) independent. They also consider the requirement of impartiality to include a requirement that the arbitrator be “disinterested.” While a case can be made for considering disinterestedness to be a component of impartiality, analyzing the two as separate components of neutrality promotes clarity and a more precise understanding of what comprises arbitrator neutrality. That, in turn, makes it easier for us to spot the presence or absence of neutrality in each case.
Neutrality: Independence
An arbitrator is independent when he or she is not directly or indirectly subject to the control of a party, potential witnesses, or the other arbitrators, is not affiliated with a party; does not act directly or indirectly in the interest of a party; and is otherwise not subject to undue influence or outside pressure. See, generally, Trout v. Organización Mundial De Boxeo, Inc., 965 F.3d 71, 80-81 (1st Cir. 2020); Demarco v. City of New York, 08-CV-3055 (RRM) (LB), slip op. at 8-9 (E.D.N.Y. Mar. 23, 2011); American Arbitration Association, The Code of Ethics for Arbitrators in Commercial Disputes Canon 1B(2) (arbitrator should not accept appointment unless “fully satisfied. . . that he or she can serve independently from the parties, potential witnesses, and the other arbitrators. . . .”) (March 1, 2004). For example, an arbitrator would not be independent were she an agent or employee of one of the parties.
Disinterestedness
“Disinterested” means “lacking a financial or other personal stake in the outcome.” Trustmark, 631 F.3d at 872-73 (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)); Certain Underwriting Members, 892 F.3d at 510; see Caperton, 556 U.S. at 876-81 (discussing cases). The requirement of “disinterest” was reflected in James Madison’s famous observation that “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10, p. 59 (J. Cooke ed. 1961) (J. Madison)); see Caperton, 556 U.S. at 876.
The rule that financial or personal interest spoils neutrality does not require proof that the decision-maker would be or was actually biased against or partial to one party or the other. It does not address whether the arbitrator actually has predispositions concerning any of the parties, witnesses, or issues. It is prophylactic rule, based on human nature, that a person having a financial or personal interest in the outcome of a dispute cannot be considered neutral, even if the decision maker honestly believes that his or her interest in the dispute would or did affect his or her judgment, and even if it could be shown objectively that the decision maker could or did judge the dispute impartially and independently.
The rule serves two functions. First, by disqualifying interested decision makers, it, all else equal, eliminates the risk that personal or financial interest will affect decision-maker neutrality. Without the rule the difficulty of proving actual bias would mean that decisions made by interested decision-makers could in many cases not be overturned because it would be difficult or impossible to prove that the interested decision maker was actually biased or partial. Second, the rule helps encourage public confidence in decision-maker neutrality by disqualifying interested decision-makers.
Impartiality
To be neutral an arbitrator must not only be disinterested, but also impartial. See, e.g., Trustmark, 631 F.3d at 872-73; U.S.Care, Inc. v. Pioneer Life Ins. Co. of Ill., 244 F.Supp.2d 1057, 1062 (C.D. Cal., 2002). To be “impartial” means to be free from “bias or prejudice” in favor of one of the parties. See Liteky v. United States, 510 U.S. 540, 550, 552 (1994). In Liteky the U.S. Supreme Court explained, in a case concerning judicial partiality standards, that the terms “bias,” “prejudice” and “partiality” “connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess…or because it is excessive in degree….” 510 U.S. at 550, 552 (emphasis in original). Arbitral or judicial predispositions may be formed as a result of any number of things, and can be appropriate or inappropriate, reasonable or unreasonable. But such predispositions do not constitute “partiality,” bias or prejudice unless they are wrongful or inappropriate. The Supreme Court’s interpretation of what “bias,” “prejudice” and “partiality” mean in the judicial context in Liteky aligns with Section 10(a)(2) itself, which authorizes vacatur where the arbitrator is “guilty” of “evident partiality.” 9 U.S.C. § 10(a)(2) (emphasis added).
Neutral versus Impartial: Terminology Glitches
Unfortunately, the terminology used by Section 10(a)(2) (and by courts interpreting it) is not always consistent with that used by arbitration providers and other arbitration professionals. Section 10(a)(2) refers only to “evident partiality,” not neutrality. Under the terminology commonly employed by arbitrator providers, “evident partiality” would not encompass an arbitrator’s lack of independence from a party. But courts generally, and we think correctly, consider evident partiality to include an evident personal or financial interest in the outcome of the dispute, an evident inappropriate predisposition in favor of or against a party, or an evident lack of independence.
EVIDENT PARTIALITY STANDARDS: THE ATTEMPT TO ENFORCE PARTY EXPECTATIONS OF NEUTRALITY WITHOUT UNDERMINING ARBITRAL FINALITY
The subject of what constitutes neutrality for judicial decision makers has long been the subject case law and statutes. Unlike the standards for disqualifying judges, which are set forth for federal judges in 28 U.S.C. § 455, arbitrator neutrality standards are not set forth by statute—Section 10(a)(2) merely authorizes a court to vacate an award if an arbitrator is “guilty” of “evident partiality.” 9 U.S.C. § 10(a)(2). While the FAA deems “evident partiality” a ground for vacating an award, the Act does not define the term or establish a baseline impartiality standard that must be met by every arbitrator. This contrasts starkly with the English Arbitration Act 1996, which imposes on all arbitrators effectively the same standards of impartiality applicable to English judges. See, generally, Arbitration Act 1996 § 33(1).
What constitutes “evident partiality” is assessed according to a sliding scale of sorts, depending on the parties’ agreement and the surrounding circumstances. For example, parties may agree to use only neutral arbitrators or a combination of non-neutral and neutral arbitrators. Or other qualifications may be imposed, such as a requirement that the arbitrators be “disinterested” in the outcome and not be under the “control” of one of the parties (i.e., the arbitrators must be disinterested and independent).
Where the parties intend one or more of the arbitrators should be neutral, then that desire for neutrality should be enforced. In the absence of express qualifications attempting to define the degree of neutrality required, the degree of neutrality will be determined by what the parties would reasonably expect in light of marketplace realities.
Where the parties’ agreement expressly or impliedly authorizes non-neutral arbitrators, courts either find that the parties have waived by consent the “evident partiality” ground for vacatur or impose a more rigorous test for demonstrating evident partiality than that applicable to a neutral arbitrator. For example, the court might require the challenger to show that bias “prejudicially affected the award” or simply figure into the mix the parties’ diminished expectations of neutrality. See, generally, Sphere Drake, 307 F.3d at 620 (“evident partiality” ground can be waived by consent); Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 552 (8th Cir. 2007) (requiring a showing of prejudice); Nationwide Ins. Co. v. Home Ins. Co., 429 F.3d 640, 645-46 & 648-49 (6th Cir. 2005), reh’g en banc denied Feb. 16, 2006 (figuring into the mix the parties’ diminished expectations of impartiality).
Evident Partiality Standard in the Second Circuit
The “evident partiality” standard—which encompasses all three components of arbitrator neutrality—is judicially created. And while the standard is articulated in different ways in certain jurisdictions, under Second Circuit authority an award may be vacated “if a reasonable person would have to conclude” that an arbitrator was biased against one party or partial in favor of another. See NFL Council, 820 F.3d at 549; Scandinavian Reinsurance Co. v. Saint Paul Fire and Marine Ins. Co., 668 F.3d at 64; Applied Indus. Materials Corp. v. Ovalar, 492 F.3d 132, 137 (2d Cir. 2007); Morelite, 748 F.2d at 83-84.
Our focus in this series of posts will be on the Second Circuit’s “reasonable person would have to conclude” standard because it has been construed and applied by many Courts since the 1980s, and has been adopted in certain (but not all) other circuits as well. See, e.g., UBS Fin. Servs. v. Asociación de Empleados del Estado Libre Asociado de P.R., ___ F.3d ___, ____, No. 20-1237, slip op. at 7-12 (1st Cir. May 7, 2021) (citing cases); Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 253-54 (3d Cir. 2013) (citing cases); ANR Coal Co. v. Cogentrix of North Carolina, Inc., 173 F.3d 493, 500-01 (4th Cir. 1999); Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1358 (6th Cir. 1989). The standard does not require a showing that an arbitrator was actually biased against one party or partial toward another, only that a reasonable person would have to conclude that was so. A determination that a reasonable person would have to conclude that an arbitrator was financially or personally interested in the outcome, or not independent, would likewise satisfy the standard. Absent disclosure and a waiver, an arbitrator should be free from any relationships with the parties that a reasonable person would have to conclude would materially compromise his or her ability to decide the case in an impartial manner. See Morelite, 748 F.2d at 84-85 (father-son relationship); Scandinavian Re, 668 F.3d at 72 (“Among the circumstances under which the evident-partiality standard is likely to be met are those in which an arbitrator fails to disclose a relationship or interest that is strongly suggestive of bias in favor of one of the parties”).
We’ll discuss in a subsequent instalment the contours of the standard, how it is applied in practice, and some examples of what “a reasonable person would have to conclude” is evident partiality.
NEUTRALITY: EVIDENT PARTIALITY STANDARDS VERSUS JUDICIAL IMPARTIALITY STANDARDS
Even an arbitration agreement that expressly requires an arbitrator to be neutral will not be construed to subject the neutral arbitrator to the standards of impartiality applicable to judges. The “reasonable person would have to conclude” standard applicable to disqualify a neutral arbitrator is considerably more demanding than that required to disqualify a federal judge under Section 455. See Morelite, 748 F.2d at 83; Leatherby, 714 F.2d at 681. Federal judges are disqualified for bias or partiality “in any proceeding in which [their] impartiality might reasonably be questioned”—a/k/a the “appearance of bias” standard. See 28 U.S.C. § 455(a). While neither the judicial nor the arbitral standard requires a challenger to establish “actual bias,” see Morelite, 748 F.2d at 84, showing that a person “might reasonably” “question” a decisionmaker’s impartiality is considerably easier than proving that a “reasonable person would have to conclude” that a decisionmaker was partial.
By not requiring neutrals to comply with judicial standards of partiality courts balance the parties’ expectations with the realities of the marketplace. Particularly in industry arbitration, sought-after arbitrators often have many years of industry experience, which may inform their perspectives on issues important to the industry. Intra-industry issues can pit one segment of the industry against another, and a qualified neutral may have experience in one or both segments. Some degree of institutional predisposition comes with the territory and does not necessarily disqualify the neutral. And as industry insiders, arbitrators may know the lawyers and the parties socially and professionally, but those relationships generally do not disqualify the arbitrator from service.
The more exacting standard for establishing evident partiality of a neutral arbitrator is not designed simply to make it more difficult to set aside arbitration awards but to reflect realistically what reasonable expectations of neutrality a party who agrees to arbitrate may have. Practical realities demand what then Circuit Court Judge Posner aptly termed a “tradeoff between impartiality and expertise” – the parties bargained for dispute resolution by an industry expert and the benefit of that expertise carries with it the burdens of greater entanglement with the parties, the industry and the issues. Indeed, if courts required the industry arbitrators — or even commercial arbitrators without an industry-specific focus — to shed or be free from this proverbial baggage, then qualified umpire candidates would be hard to come by. See Leatherby, 714 F.2d at 679.
In Leatherby Judge Posner explained that the “[d]ifferent weighting of impartiality and expertise in arbitration compared to adjudication is dramatically illustrated by the practice whereby each party appoints one of the arbitrators to be his representative rather than a genuine umpire.” 714 F.2d at 679 (citation omitted). “No one,” said the Court, “would dream of having a judicial panel composed of one part-time judge and two representatives of the parties, but that is the standard arbitration panel, the panel Leatherby chose–presumably because it preferred a more expert to a more impartial tribunal–when it wrote an arbitration clause into its reinsurance contract with Merit.” 714 F.2d at 679. “If Leatherby had wanted its dispute” to be resolved by an Article III judge. . . it would not have inserted an arbitration clause in the contract, or having done so move for arbitration against Merit’s wishes.” 714 F.2d at 679. “Leatherby wanted something different[;]” said the Court, “it wanted dispute resolution by experts in the insurance industry, who were bound to have greater knowledge of the parties, based on previous professional experience, than an Article III judge or jury.” 714 F.2d at 679.
“Parties agree to arbitrate precisely because they prefer a tribunal with expertise regarding the particular subject matter of their dispute,” said the late Circuit Judge Irving R. Kaufman, speaking for the Court in Morelite, and “[f]amiliarity with a discipline often comes at the expense of complete impartiality.” Morelite, 748 F.2d at 83:
Some commercial fields are quite narrow, and a given expert may be expected to have formed strong views on certain topics, published articles in the field and so forth. Moreover, specific areas tend to breed tightly knit professional communities. Key members are known to one another, and in fact may work with, or for, one another, from time to time. As this Court has noted, ‘[e]xpertise in an industry is accompanied by exposure, in ways large and small, to those engaged in it….’ . . . . [T]o disqualify any arbitrator who had professional dealings with one of the parties (to say nothing of a social acquaintanceship) would make it impossible, in some circumstances, to find a qualified arbitrator at all.
Morelite, 748 F.2d at 83 (quoting Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 701 (2d Cir.1978); other citations omitted).
Another reason the law does not hold neutral arbitrators to the same standards as judges is because arbitration is a voluntary. See Leatherby, 714 F.2d at 679. “Courts are coercive, not voluntary, agencies,” and “fear of government oppression” has, over time, prompted the creation of “a judicial system in which impartiality is prized above expertise.” Leatherby, 714 F.2d at 679. Persons elect to submit their disputes to arbitration “do so because they prefer a tribunal knowledgeable about the subject matter of their dispute to a generalist court with its austere impartiality but limited knowledge of subject matter.” Leatherby, 714 F.2d at 679.
TRIPARTITE ARBITRATION: PARTY-APPOINTED ARBITRATORS
Whether the arbitration is tripartite or before a single arbitrator may inform the parties’ expectations of partiality. If a single arbitrator is used, then the presumption is the parties intended the arbitrator to be a neutral, albeit one not subject to the rigorous standards of neutrality applicable to federal judges. But arbitration agreements frequently call not for single arbitrators, but tripartite panels. In reinsurance arbitrations, for example, each party typically appoints an arbitrator and the party-appointed arbitrators attempt to agree on an umpire or select one by lot drawing, coin toss, Dow Jones pick or like tie-breaking procedure. Unless the arbitration agreement provides otherwise, courts generally presume that the parties intended their appointed arbitrators to act as advocates of a sort:
[I]n the main party-appointed arbitrators are supposed to be advocates. In labor arbitration a union may name as its arbitrator the business manager of the local union, and the employer its vice-president for labor relations. Yet no one believes that the predictable loyalty of these designees spoils the award. (Emphasis in original; citations omitted).
Sphere Drake, 307 F.3d at 620. The theory behind the tripartite structure is that it provides the best of two worlds: (a) two experienced and knowledgeable industry professionals, each of whom acts as an advocate of sorts on behalf of its appointing party; and (b) an equally experienced and knowledgeable umpire, who either casts the tie-breaking vote or brokers a consensus. The reinsurance industry’s general acceptance of an advocacy role for party-appointed arbitrators is evidenced by the common practice of panels (usually with the parties’ consent) authorizing ex parte contact between party-appointed arbitrators and their appointing parties.
Although courts will (absent contract language to the contrary) ordinarily assume that the parties intended party-appointed arbitrators to play an advocacy role, in the reinsurance industry there is a fair amount of disagreement concerning the degree of partiality permissible. For example, there are some who believe that robust advocacy is appropriate, while others believe the party-appointed arbitrator should strive to give the appointing party the benefit of the doubt, but ultimately decide the matter according to the evidence and applicable law, custom and practice. Others may have different views. For its part, the insurance and reinsurance industry ARIAS-US Code of Conduct, Canon II, commentary, urges party-appointed arbitrators “to act in good faith with integrity and fairness,” “not allow their appointment to influence their decision on any matter before them,” and “make all decisions justly.” The ARIAS-US commentary, however, is not binding on the parties (unless they otherwise agree) and there is disagreement within the industry as to whether the standards embraced by Canon II’s commentary should be followed in practice.
The upshot is that the line between the acceptable and unacceptable is both difficult to draw and blurry. Checks on rampant partisanship are ordinarily not imposed by the courts but by economic considerations: Party-appointed arbitrators that overstep what other panel members perceive to be proper ethical boundaries risk diminished credibility, influence, and effectiveness, which in turn, may result in fewer appointments.
The use of partisan arbitrators, which continues in reinsurance industry arbitration, certain other types of industry arbitration, and labor arbitration, appears to have fallen out of favor in less specialized forms of administered commercial arbitration. Rule 18 of the American Arbitration Association’s Commercial Arbitration Rules reverses the presumption that party-appointed arbitrators should be non-neutral. Rule 18 says “Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for:”
(i) partiality or lack of independence, (ii) inability or refusal to perform his or her duties with diligence and in good faith, and (iii) any grounds for disqualification provided by applicable law.
AAA Commercial Arbitration Rules and Mediation Procedures (“AAA Commercial Rules”) R. 18(a) (2013). Rule 18 further provides that “The parties may agree in writing. . . that arbitrators directly appointed by a party pursuant to Section R-12 shall be nonneutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.” AAA Commercial Rules R. 18(b). The AAA rules vest in the AAA the power to “determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive.” AAA Commercial Rules R. 18(c).
Please note. . .
This guide, including prior instalments, and instalments that will follow in later posts, does not purport to be a comprehensive recitation of the rules and principles of arbitration law pertinent or potentially pertinent to the issues discussed. It is designed to give clients, prospective clients, and other readers general information that will help educate them about the legal challenges they may face in arbitration-related litigation and how engaging a skilled and experienced arbitration attorney can help them confront those challenges more effectively.
This guide is not intended to be legal advice and it should not be relied upon as such. Nor is it a “do-it-yourself” guide for persons who represent themselves pro se, whether they are forced to do so by financial circumstances or elect to do so voluntarily.
If you want or require arbitration-related legal advice, or representation by an attorney in an arbitration or in litigation about arbitration, then you should contact an experienced and skilled attorney or law firm with a solid background in arbitration law.
Contacting the Author
If you have any questions about arbitration, arbitration-law, arbitration-related litigation, this article, or if you wish to discuss possibly retaining the Loree Law Firm to provide legal advice or other legal representation, please contact the author, Philip Loree Jr., at (516) 941-6094 or at PJL1@LoreeLawFirm.com.
Philip J. Loree Jr. has more than 30 years of experience handling matters arising under the Federal Arbitration Act and in representing a wide variety of clients in arbitration, litigation, and arbitration-related litigation.
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