Proposed Guidelines for Arbitral Disclosure of Social Media Activity

Abstract

The statutes and rules governing the disclosures of conflicts of interest by arbitrators, which failed to provide much clarity even prior to the advent of social media, do not provide any concrete guidance about the disclosure of an arbitrator’s social media connections with the participants in an arbitration. The absence of clear, consistent standards governing social media disclosures is problematic for both arbitrators and the parties who select and appear before them. This problem will only get worse as arbitrators make increasing use of social media for personal and professional purposes and challenges to arbitration awards based on inadequate disclosure of social media activity work their way through the courts. Arbitrators who fail to make adequate disclosures about their social media activity expose themselves to ethical and reputational risk and their awards to vacatur. Arbitrators who search for and fully disclose their social media connections—in an era when many of their peers do not—are likely to be unfairly punished for their transparency in the marketplace for arbitration services. And in today’s uncertain environment, the parties to an arbitration do not know how to interpret an arbitral disclosure that does not contain any reference to social media activity. Does it mean that there are no social media connections between the arbitrator and the participants in the arbitration to the best of the arbitrator’s recollection? Does it mean that the arbitrator searched the social media platforms she uses and identified no such connections? Or does it mean that the arbitrator has social media connections to the participants in the arbitration, but views those connections as immaterial? Unfortunately, absent a uniform approach, there is no way to know the answers to these questions. Arbitrators need clearer guidance to ensure compliance with ethical rules and the standards governing vacatur of arbitral awards. They also need to know that they will not be competitively disadvantaged by being more transparent about their social media connections than their peers. And the parties to an arbitration are entitled to consistent disclosures about social media activity so they can realize one of the primary benefits of arbitration—the ability to meaningfully participate in the selection of an impartial arbiter. This Article proposes the first comprehensive set of guidelines for the disclosure of an arbitrator’s social media connections. If adopted by the arbitral community, these guidelines will level the playing field and yield consistent disclosures that will benefit all the participants in an arbitration and safeguard the integrity of the arbitration process. The guidelines, which offer specific disclosure recommendations across all social media categories which arbitrators are likely to use, are based on three core principles. First, adherence to the guidelines should ensure compliance with the most exacting disclosure standards imposed upon arbitrators by existing statutes and rules. Second, arbitrators should disclose all ongoing social media relationships with arbitration participants that arise out of affirmative conduct by the arbitrator. And third, while it is reasonable to expect arbitrators to conduct a search of their social media activity to identify disclosable relationships, it should be practicable and not overly burdensome for arbitrators to do so.

Keywords: Arbitration, arbitral disclosure, social media