People have to believe that arbitrators are neutral for the process to work, so Eric Tuchmann, general counsel for the American Arbitration Association (AAA), says his organization takes disclosure and conflicts issues seriously.
“One of the reasons for disclosure is to protect the process itself. Another is to provide enough information to the parties that there are no relationships that would cause them concern,” Tuchmann says. “And then there’s a third issue . . . you want to protect the award from vacatur. And that’s a legal reason.”
Texas Lawyer senior reporter John Council asked Tuchmann to outline how the AAA and its arbitrators handle disclosure issues. His answers are below, edited for length and style.
Texas Lawyer: What are all AAA arbitrators required to disclose?
Eric Tuchmann, general counsel, American Arbitration Association, New York City: They are required to sign an oath that is consistent with the code of ethics for the AAA and [the] ABA [American Bar Association] Code of Ethics for Commercial Disputes. From there they are also prompted by the AAA to make certain disclosures. They are asked to disclose any relationships between the parties and their counsel — things like prior appointments by an arbitrator to any parties to this case, any relationships they may have with witnesses. Sometimes there may be some witnesses the arbitrator has had a connection with and those are appropriate disclosures as well. They need to indicate that they are neutral and competent to serve. . . . If they’re a partner in a law firm, they need to do a conflicts check to make sure a party in the arbitration isn’t represented by their law firm. . . . We really encourage expansive disclosure by the arbitrator. Our view is that parties appreciate more disclosure as opposed to less disclosure, even if that information doesn’t necessarily raise a basis for disqualification.
TL: What if a lawyer wants to ask further questions about an arbitrator’s initial disclosures?
Tuchmann: It’s not uncommon for people to want to know more information. When a party does that, they can go to their case manager [an AAA staff member who oversees the case] and say, “We would like more information from that arbitrator.” We will go to the arbitrator and ask for that information. And whatever information we get back, we will give that to the parties.
TL: What is the process when a party wants to object to an arbitrator hearing their case because of a conflict?
Tuchmann: We have a pretty standard procedure. They simply lodge their objection with the American Arbitration Association. When they do that the other parties are made aware as well. And they are allowed to give their own input into the objection. Sometimes both parties will say: “You’re right. And we’re not going to appoint this arbitrator.” And if they mutually agree, the AAA is not going to inject themselves. If they disagree we will seek out both parties’ position on this. And we will evaluate the submissions. We will consider how close in time the contact was. The fact is that a 25-year-old relationship is different than a 2-month-old relationship. We also consider the magnitude of the conflict. We may also ourselves ask for additional information from the arbitrator. And we’ll think about whether it’s a continuing relationship. . . . Then AAA will make the call.