In arbitration, unlike in court, the parties are tasked with choosing their own arbitrator or panel of arbitrators. Each side wants to pick the arbitrator or panel that will see the case in the best light. They want someone who can understand the issues and effectively resolve the matter in an efficient manner.
The first step in choosing an arbitrator is to review the arbitration agreement. It will often provide the intended format of the arbitration (one arbitrator or a panel of three to five or more) and the arbitration venue (JAMS, AAA, ICDR, ICSID, or private arbitration). Each arbitration tribunal has its own rules for arbitration, including rules about how to select an arbitrator, and its own roster of potential arbitrators.
The usual process involves reviewing a list of a set number of available neutrals provided by the arbitration forum. Both sides will have an opportunity to vet these names by conducting internet searches and reviewing any publicly published decisions they may have drafted. The parties are then required to list their set number (usually 3) of preferred neutrals in order of preference. The arbitration forum then reviews each parties’ list and chooses the “agreed” arbitrator.
As you can imagine, reviewing the neutrals’ background and expertise, and even deciding in which order to rank each neutral, is more of an art than a science. Factors to consider include the neutral’s experience in the relevant industry and with the particular issues involved, whether the neutral tends to work on matters for one part of the industry or previously worked on only one side of the relevant issue, how others who have worked with the neutral have ranked his/her ability to communicate well with the parties and to achieve results in a timely manner, and the neutral’s experience as a neutral.
These factors should not be given equal weight. How you balance them will also depend on the specific facts of the case. Sometimes you may not prefer a neutral with extensive industry experience if you are concerned that it will bias the neutral against your client. But in other cases, you might consider such experience to be essential.
You will also want to be sure that the chosen neutral does not have any conflicts of interest. These will be obvious based on the disclosures provided by the neutral at the start of the case. But at other times, the conflicts may be more subtle and non-disclosed. For particularly sensitive arbitrations, you may need to inquire about potential industry connections to be sure that the proposed neutral is not unknowingly conflicted.
You will usually not have the opportunity to question the neutral prior to the appointment. But you should seek out information about a neutral’s conduct on past cases to ensure that they are proficient with case management. You want an arbitrator that clearly communicates rulings and deadlines, and one who will push the parties towards an efficient resolution.
Selecting the right arbitrator is part art and part science. You should make a considered choice to select the arbitrator with the proper qualifications, knowledge, know-how, and temperament to favorably resolve your case.
