Chapter 46 -LIABILITY V. QUASI-JUDICIAL IMMUNITY OF THE ARBITRATOR

Following is a quote from a very well written paper outlining and challenging arbitrator immunity. Read on. “In this context it is important to stress that granting absolute immunity and thus allowing all kinds of harmful misconduct to go unpunished is the wrong message to send to the parties involved in the arbitral proceeding. To the parties, arbitral immunity can have two implications: first, if one party is willing to use unethical methods to influence the outcome of the arbitration she has considerable chances of finding an arbitrator who will cooperate; second, if one party is not willing to use unethical methods to influence the outcome of the arbitration she may lose the case to the other party. To the arbitrators the land of no sanctions can mean that they may attract all kinds of appointing parties, especially those willing to use unethical means to win their case. The danger is thus that the arbitrators willing to act unethically will receive ample appointments, while remaining free from sanctions, whereas those participants who refuse to do so, will not be appointed. It can thus be argued that absolute immunity drives all participants in the arbitration procedure to a “race to the bottom,” diminishing the professional standards that ensure the quality of the awards rendered and the continuation of the growing movement83 towards arbitration.”LIABILITY_V._QUASI-JUDICIAL_IMMUNITY_OF

I am struck by the conclusion that “if one party is willing to use unethical methods to influence the outcome of the arbitration she has considerable chances of finding an arbitrator who will cooperate; second, if one party is not willing to use unethical methods to influence the outcome of the arbitration she may lose the case to the other party.” Those of us naive enough or foolish enough to believe the integrity of arbitrators need to now understand that the abuses of power and influence are at an all time high. Fast money perhaps. I’m not really sure.

One of the ways unethical arbitrators avoid or at least minimize the exposure of public ridicule is to issue an award decision only, without publishing the reasoning and merits of the position of the parties, evidence, etc. I like to call this the David Wilson approach. David is an arbitrator in Denver, specializing in International Arbitration.

I remain confused as why the arbitrator ruled in the way that he did. This discussion must allow for some possibility that this is not just an issue of cognitive confusion and reliance on a colleague that shamefully lead him astray.

The interim motions were not prepared in opinion form. In fact I still don’t know why he ruled the way he did on our two bites at the summary judgment motion. My attorneys should not have allowed this. They did.

Until next time.

 

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