Chapter 23 – Arbitrator Code of Ethics

It goes without saying that the standard for arbitrators would be close to the same as that for State & Federal Judges. Both parties to litigation are looking for an adjudicator and process free of corruption and ideally one that is efficient. The Max matter took seven years by the way.

The Arbitration Service of Portland site would not load today. Maybe they are no longer in business. I don’t know. But the American Arbitration Association Code of Ethics was readily available and for lack of a better solution we will go over their Code of Ethic’s very briefly.

CANON I: An arbitrator should uphold the integrity and fairness of the arbitration process.

CANON II: An arbitrator should disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality

CANON III: An arbitrator should avoid impropriety or the appearance of impropriety in communicating with parties.

CANON IV: An arbitrator should conduct the proceedings fairly and diligently.

CANON V: An arbitrator should make decisions in a just, independent and deliberate manner

CANON VI: An arbitrator should be faithful to the relationship of trust and confidentiality inherent in that office.

CANON VII: An arbitrator should adhere to standards of integrity and fairness when making arrangements for
compensation and reimbursement of expenses.

CANON VIII: An arbitrator may engage in advertising or promotion of arbitral services which is truthful and accurate.

CANON IX: Arbitrators appointed by one party have a duty to determine and disclose their status and to comply with this code, except as exempted by Canon X

CANON X: Exemptions for arbitrators appointed by one party who are not subject to rules of neutrality

You will note above that there are exemptions in Canon X to the rule or neutrality. Interesting. I suspect that the Arbitration Service of Portland’s Code of Ethics will not vary much from the above, but who knows. Maybe they do. Maybe there are a lot more exemptions to neutrality.

This is really beating a dead horse. Arbitrators need to be neutral and have an obligation to disclose throughout the arbitration and I quote… “The obligation to disclose interests or relationships described in paragraph A is a continuing duty which requires a person who accepts appointment as an arbitrator to disclose, as soon as practicable, at any stage of the arbitration, any such interests or relationships which may arise, or which are recalled or discovered.”

I really have no idea why this ethical boundary, this disclosure requirements and neutrality mandate, why this is so difficult for an attorney acting in a role of arbitrator. The foundation of our expectation is fairness and neutrality. Do they set that aside when one party is a business? It seems so. And Schwabe Williamson, the firm arbitrator C was a partner in at the time he was our arbitrator represents businesses…at least that is a large part of their practice. Somewhere in all of this those entering into arbitration must believe in the process. I don’t anymore.

These issue I have and will discuss are worthy of our consideration, but not the least of these is what recourse do we have if the arbitrator did not have the acuity or stamina to do his duty and was in the process exploited by one of the parties who had a relationship with the arbitrator. A prior relationship allows a disproportionate amount of influence far away from the facts. What can you do then if that’s the case. There does not appear to be a solution.

AAA Code of Ethics follow.Commercial_Code_of_Ethics_for_Arbitrators_2010_10_14

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