Speak Now or Hold Your Peace: Prearbitration Express Waivers of Evident-Partiality Challenges
By Edward C. Dawson | 63 Am. U. L. Rev. 307 (2013)
This Article proposes that parties and arbitrators should use, and courts should enforce, express prearbitration waivers of certain evident-partiality challenges as a way to avoid uncertainty and expense caused by widely-acknowledged disarray in the doctrine of evident partiality. Courts considering evident-partiality cases mainly have focused on (and disagreed about) the content of the doctrine and the circumstances in which a party can constructively waive an evident-partiality challenge by failing to object to an arbitrator despite knowing about a particular relationship. Similarly, the academic literature examining evident partiality has focused on the appropriate judicial test for assessing partiality, rules for defining the scope of an arbitrator’s duty to disclose, and proposals for reconciling the division in the courts.
This Article takes a different approach. It is the first examination of the use of party waivers to cut off judicial evident-partiality challenges and avoid the uncertainties in the doctrine. The solution proposed in this Article is that parties can consensually avoid the current uncertainty over evidentpartiality doctrine through express prearbitration agreements to waive certain judicial challenges.
This Article explains why using express evident-partiality waivers should be attractive to parties. It also argues that courts should be willing to enforce such waivers under the Federal Arbitration Act. Enforcing them is theoretically consistent with arbitration’s fundamental policies of resolving disputes based on the parties’ consent and allowing the parties to choose for themselves the most efficient procedures to resolve their dispute. These policies are strongly reinforced by recent Supreme Court opinions in other areas of arbitration law.
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