Timing of Institutional Bias Challenges to Arbitration

Abstract:     
Disputants subject to an arbitration agreement may attempt to challenge the agreement based on an alleged institutional bias of the chosen arbitration system — that is, a general tendency of the arbitration system to find consistently in favor of one type of participant over another. However, unlike challenges to arbitration based on contract principles or an inability to vindicate statutory rights, which may be brought prior to arbitration, or challenges based on “evident partiality” of the arbitrators or “fundamental unfairness” of the arbitration, which may only be brought after the arbitration has occurred, it is unclear when institutional bias challenges may properly be raised. While on first impression, institutional bias challenges may seem more like “evident partiality” and “fundamental unfairness” challenges that can only be raised post-arbitration, this paper points out important differences, and suggests that the actual best fit is with those challenges that can be raised prior to arbitration. Consequently, this paper argues that disputants should be permitted to raise institutional bias challenges before being compelled to arbitrate.

Number of Pages in PDF File: 24

Keywords: Arbitration, Institutional Bias, Federal Arbitration Act

Accepted Paper Series