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Arbitrator Bias: How U.S. Courts Are Reacting To The Parties' Choice Of Ethics Codes For Arbitrators And The Implications

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Chapter Summary

The standard for determining arbitrator bias as a ground for vacating an arbitration award was articulated by the U.S. Supreme Court in the 1968 case of Commonwealth Coatings wherein a neutral arbitrator on a three person panel failed to reveal a prior business relationship that existed between him and one of the parties. Faced with the uncertainty of the "evident partiality" standard articulated in the Federal Arbitration Act (FAA), arbitrators have increasingly sought to rely on the use of ethics codes to ensure compliance with disclosure standards, with mixed results. The history of the Positive Software case is a long and interesting one. In that case, which involved an American Arbitration Association (AAA) arbitration, the arbitrator in question stated that he had nothing to disclose regarding past relationships with either party or their counsel.

Keywords:American Arbitration Association (AAA) arbitration; arbitrator bias; Commonwealth Coatings; ethics codes; Federal Arbitration Act (FAA); Positive Software case; U.S. Supreme Court



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