How to find the right arbitrator
By Mia Clarke, Associate Editor
Choosing the right arbitrator is one of the most critical decisions a party can make during alternative dispute resolution, says Toronto litigator and commercial arbitrator Marvin Huberman.
That’s why it’s so important to take the time to review potential candidates very carefully, he tells AdvocateDaily.com.
“In my view, a highly effective commercial arbitrator must be impartial, independent and free of bias,” says Huberman. “There’s recent case law that says the test for arbitrator bias is essentially the same test for judges. Not only can there be no bias, there cannot be a reasonable apprehension of bias.”
In a leading case on the matter, Justice Graeme Mew of the Ontario Superior Court of Justice put limits on what an arbitrator is expected to do to discover bias.
At issue was whether an arbitrator’s failure to disclose a potential conflict of interest involving his former law firm was enough to question his independence or impartiality.
In that case, Mew said it’s reasonable to expect a current partner of a law firm to do such a conflict check, but not a former partner. He awarded significant costs against the applicant “to deter losing parties in international commercial arbitrations from launching baseless ex post facto challenges to an arbitrator’s impartiality.”
With case law like that — and because there’s little recourse against an award once granted — Huberman says it’s important to get the selection of an arbitrator right.
“In Ontario, the Court of Appeal has made it abundantly clear that it’s almost impossible to successfully appeal or seek judicial review from an arbitral award. Rather than question the award, dissatisfied parties are now more likely to seek judicial review on the conduct of the arbitrator. This is where Mew’s decision establishes the test for impartiality.”
Huberman says candidates should have “the prerequisite legal and professional expertise, skills, knowledge, experience and attributes.” They should also have a reputation for being impartial and fair. He suggests asking around about the reputation of the individual.
“It’s also important to find someone with a manageable caseload because one of the objectives is to be faster, cheaper and more effective in enforcement of the award than traditional court proceedings.”
Huberman says an effective arbitrator is “basically a good manager — someone who ensures the process is expeditious, fair and cost-effective.”
Again, he says, it comes down to parties conducting due diligence in ADR circles. He suggests looking for individuals who possess patience, fairness, objectivity, open mindedness, diligence, efficiency and decisiveness.
He says the candidate should also have a “judicial manner” and be able to “get to the truth of the matter” — sometimes in cases that involve constitutional issues, trade policies, international conventions, procurement policies, and the like.
That’s a tall order, acknowledges Huberman, and if that weren’t enough, arbitrators must also understand and use the various technological tools required to make the process efficient.