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San Diego Law Review

William W. Park

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466

Document Type

Article

Abstract

The constant movement in arbitrators' lives and activities requires regular adjustment in both formulation and application of contours for acceptable and unacceptable arbitrator behavior. Legal claims should be decided on their merits, rather than according to a predisposition or interest in the outcome. A reasonable measure of arbitrator integrity remains both desirable and attainable. However, in a world of stubbornly heterogeneous legal cultures, each with its own divergent view of proper conduct, elaborating one common ethical plumb line for international arbitration poses special challenges. Fair-mindedness and intelligence remain the most sought after qualities in arbitrators. To reduce the risk of having cases decided by either pernicious or precarious arbitrators, those who establish and apply ethical guidelines walk a tightrope between the rival poles of (i) keeping arbitrators free from taint, and (ii) avoiding maneuvers that interrupt proceedings unduly. If arbitrators must be completely sanitized from all possible external influences on their decisions, only the most naive or incompetent would be available. Consequently, notions such as "proximity" and "intensity" will be invoked to evaluate allegedly disqualifying links or prejudgment. The search for balance in ethical standards compels a constant reevaluation of the type of relationships and predispositions likely to trouble international arbitration. Arbitrator conflicts of interest usually fall into one of two categories: lack of independence and lack of impartiality. The common assumption is that an arbitrator in international disputes must be both impartial and independent. Neutrality generally encompasses both independence and impartiality. One intriguing question relates to the extent that either independence or impartiality may be waived by fully informed litigants. The right to a fair hearing could be waived, or at least objections must be raised in a timely fashion. Although some behavior patterns provide per se evidence of impropriety, other types of conduct take on radically different ethical overtones depending on the circumstances. To promote confidence in the international arbitral process, party input into the selection of arbitrators has long been common practice. To some extent, concerns over issue conflict and role confusion intersect with what is sometimes called "institutional bias." A particular arbitral institution might be perceived as tending to appoint arbitrators likely to favor one category of litigants over others. In most instances, public and private goals will coincide, with each having a very real interest in the systemic integrity of the arbitral process.

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