Proponents of arbitration typically laud its advantages of flexibility, efficiency and confidentiality. However, challenges to a nominated arbitrator can put these goals in conflict right from the arbitration’s inception. Perhaps to enable flexibility, many arbitral bodies’ procedural guidelines for challenges are not highly detailed. And perhaps to safeguard confidentiality, few arbitral bodies publish their arbitrator challenge decisions.
The result, however, is that arbitration participants have less information about whether their arbitrator choice may be subject to challenge; whether a prospective challenge is justified; what procedures (if any) are available to gather more information about an arbitrator; or what penalties (if any) exist for a party who abuses the process. As a result, disputes may arise on basic issues. And while most arbitrator selections and challenges are undoubtedly made in good faith, the lacuna of information yields a situation that is subject to abuse by overzealous participants.
