Who Judges the Judges?: Ensuring arbitrator impartiality, dealing with bias, and seeking judicial review
Impartiality is the foundation of the arbitration process. But while arbitrators are expected to maintain objectivity in assessing evidence and rendering decisions, they nevertheless have the potential to be affected by conscious or unconscious bias. In this session, experienced arbitrators and counsel will discuss arbitrator impartiality, provide guidance on the steps that parties may take if they encounter arbitrator bias, and outline how parties may seek judicial review of an arbitrator's decision.
- Ensuring arbitrator impartiality: What level of impartiality is expected of arbitrators? To what extent do arbitrators owe a duty of fairness to the parties appearing before them? What steps should arbitrators take to ensure impartiality and avoid even the appearance of bias? What types of inquiries can parties and their counsel make to verify the impartiality of an arbitrator? Are there different expectations of employer or union nominees to a board of arbitration?
- Dealing with bias: What is the test for determining arbitrator bias? What are examples of arbitrator conduct that courts have deemed to constitute bias? How and when should a party raise any concerns about the impartiality of an arbitrator? What should a party do if concerns about an arbitrator's impartiality develop after the hearing has started? When will a court order the removal of an arbitrator? What unique considerations may arise in the context of mediation-arbitration, in which the same individual acts as both mediator and arbitrator?
- Seeking judicial review: On what grounds may an arbitrator's decision be challenged? What is the procedure for seeking judicial review of an arbitrator's decision on the basis of a reasonable apprehension of bias? What is the standard of review that a court will apply on reviewing an arbitrator's decision? When will a court order that a matter be remitted to a new panel rather than to the original panel for reconsideration?