§658A-12 Disclosure by arbitrator.

618 words·~3 min read·/hi/658a-12

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitration proceeding, including:

(1)A direct and material financial or personal interest in the outcome of the arbitration proceeding; and

(2)An existing or past substantial relationship with any of the parties to the agreement to arbitrate or the arbitration proceeding, their counsel or representatives, a witness, or another arbitrator.

(b)An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitration proceeding and to any other arbitrators any facts that the arbitrator learns after accepting appointment that a reasonable person would consider likely to affect the impartiality of the arbitrator.

(c)If an arbitrator discloses a fact required by subsection

(a)or

(b)to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be a ground under section 658A-23(a)(2) for vacating an award made by the arbitrator.

(d)If the court, upon timely objection by a party, determines that the arbitrator did not disclose a fact required by subsection

(a)or

(b)to be disclosed, the court may determine that such failure to disclose constituted evident partiality and vacate an award made by the arbitrator pursuant to section 658A-23(a)(2).

(e)If the parties to an arbitration proceeding agree to the procedures of an arbitration organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under section 658A-23(a)(2). [L 2001, c 265, pt of §1; am L 2017, c 187, §1]

Case Notes

Although disclosure of de minimis interests or relationships is not required, arbitrators must at the outset disclose, then continually disclose throughout the course of an arbitration proceeding, any known facts that a reasonable person would consider likely to affect the arbitrator's impartiality. 136 H. 29, 358 P.3d 1 (2015).

"Counsel" does not include all attorneys in the law firm of an attorney representing a party to an arbitration. However, depending on the circumstances, the facts that a reasonable person would consider likely to affect an arbitrator's impartiality, thereby requiring disclosure by the arbitrator, could include the arbitrator's relationships with other attorneys within a law firm of counsel representing a party to the arbitration. 136 H. 29, 358 P.3d 1 (2015).

Where arbitrator's connections to a law firm that previously employed arbitrator, a witness who testified in a prior proceeding before arbitrator, and an attorney who previously appeared in two cases before arbitrator were called into question as relationships evidencing partiality requiring disclosure under this section, the circuit court did not clearly err in determining that these were not "relationships" for the purposes of this section requiring vacatur under §658A-23(a)(2) because:

(1)the mere fact that an arbitrator has observed a witness in a prior proceeding and therefore may have "had an opportunity to evaluate the person and form an opinion as to the person's credibility[,]" without more, is not a "relationship" that requires disclosure;

(2)there was no actual direct connection between the law firm and the parties, counsel, witnesses, and arbitrator in the present proceeding; and

(3)appearance as expert witness of attorney who previously appeared in two cases before arbitrator was not a "relationship" that created a reasonable impression of impartiality. 140 H. 75, 398 P.3d 664 (2017).