U.S. courts in recent years have imposed stricter obligations on individuals sitting as arbitrators to disclose to the parties fully any facts or circumstances that may give rise to doubts about their impartiality or independence. As a result, the arbitrators’ mantra has become “disclose, disclose, disclose.” Indeed, it has become fairly common in arbitrations under U.S. law to see arbitrators making continual disclosures throughout the arbitral process as to every minor event that could possibly be seen as questionable – such as receiving a phone call from an old college friend who happens to be a partner at the same large firm as is representing one of the parties, even though the old friend is in a different city and different practice area entirely, and has no connection whatever to the pending arbitration. Under a recent change in American Arbitration Association (AAA) Construction Industry Rules, the parties and their counsel now get to play the disclosure game as well.

The AAA Construction Industry Rules (formally the “Construction Industry Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Construction Disputes)”) are the rules most often selected for domestic U.S. construction arbitrations, and are used in many trans-national cases as well. The AAA Construction Industry Rules as most recently revised (effective October 1, 2009) now provide (in Rule 19(a)) as follows with respect to the applicable disclosure requirements (new language in italics):

“Any person appointed or to be appointed as an arbitrator as well as the parties and their representatives shall disclose to the AAA, as promptly as practicable, any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives. Such obligation shall remain in effect throughout the arbitration.”

So in an AAA construction arbitration, the parties and their counsel now have just as extensive disclosure obligations as do the arbitrators themselves. That means if counsel for one of the parties learns that her partner in a far-away city is buddies with one of the arbitrators, and this connection has not previously been disclosed, presumably she will now be the one to disclose it. It seems eminently predictable that disclosures by parties and counsel of facts giving rise to justifiable doubts about the impartiality of an arbitrator is rife with immense potential simply to embarrass everyone involved. And not just the embarrassment associated with having to call to everyone’s attention some relationship that, at least arguably, the arbitrator should have disclosed earlier himself. What if, instead of an old college friend, she learns instead that one of her partners is having an affair with the married arbitrator? In a hurry, this seemingly innocuous new rule could get very interesting indeed. Stay tuned. The American preoccupation with disclosing everything may lead down an interesting path.

Andrew D. Ness

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