Chapter 11 - § 11.6 • DISQUALIFICATION OF ARBITRATOR

• Jurisdiction: Colorado

§ 11.6 • DISQUALIFICATION OF ARBITRATOR

Generally, the court does not become involved in motions to disqualify an arbitrator. Rather, the issue comes before the court upon a motion to vacate an award on statutory grounds.

Compare Colorado Code of Judicial Conduct Canon 3(C) and 28 U.S.C. § 455.

See Chapter 17. Certain of the grounds for vacating an award are also grounds for disqualification.

§ 11.6.1—Pre-Award Judicial Involvement In Arbitrator Disqualification

The FAA does not authorize a federal district court to remove an arbitrator appointed under a valid arbitration agreement prior to the issuance of the arbitration award.⁴⁸ Thus, the court apparently will not become involved in an arbitrator's possible bias, etc., until after the arbitrator issues an award. At that point, a party may proceed under FAA § 10. To otherwise hold might add a long delaying procedure to the arbitration process — judicial consideration of requested arbitrator disqualification. Therefore, if one party makes a potentially sound objection to an arbitrator asserting bias, it may be desirable for the other party to agree to the disqualification of the arbitrator so as to avoid a process that might at the end be for naught if the court vacates the award. If the objection is made during the course of the proceeding to newly learned and disclosed information, the risk of proceeding with one party objecting is much less: It is anticipated that in such a circumstance the court would implicitly apply a much higher standard to disqualification.

Neither the FAA nor the CRUAA has any provisions on disqualification of a person to serve as an arbitrator. In rare instances, a court may intervene when an institutional provider fails to disqualify an arbitrator in an extreme case.⁴⁹

The U.S. District Court for the District of Utah held that under the FAA it did not have authority to disqualify an arbitrator prior to issuance of the arbitration award.⁵⁰ However, there is contrary authority.⁵¹

Comment: Perhaps the better approach is that the courts will intervene to consider disqualification of an arbitrator if (1) there is not an organization such as the AAA to consider the issue, at least in the first instance, or (2) the disqualification ground is apparent from undisputed evidence, or (3) in special circumstances. For example, both parties may wish the issue decided prior to the hearing. On the other hand, if on its face the disqualification claim appears highly questionable, and the party not asserting the motion wishes to proceed with the hearing and defer the issue, perhaps the court should defer consideration.

The substantial issue is that when there is no organization administering the arbitration, the ar-bitrator(s) must determine any motion to disqualify if presented to the arbitrator(s). If there is a panel of arbitrators, the panel can determine the motion, with, it is suggested, the arbitrator at whom the motion is directed voting and participating. If there is a single arbitrator, there is no one to defer to except to direct the parties to take the motion to court. That does not appear to be the preferred course of action. Rather, like a judge, a sole arbitrator, when presented with a motion to disqualify himself or herself, should decide the motion. When judicial review may be affirmed is another issue. If the arbitrator is not disqualified, the motion can be made to vacate the award. See Chapter 17.

• Annot., Disqualification of Arbitrator by Court or Stay of Arbitration Proceedings Prior to Award, on Ground of Interest, Bias, Prejudice, Collusion, or Fraud of

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