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Party-appointed Arbitrator and Independent Research

Wednesday, July 16, 2025 7:33 PM | Anonymous

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Is it appropriate for a party-appointed arbitrator to perform independent research (favorable to the appointing party) and present it to the panel?

What are your thoughts?


Comments

  • Thursday, July 17, 2025 7:51 PM | Thomas P. Valenti
    Party-appointed arbitrators must walk a careful line. They may understand and articulate a party’s position during deliberations, but they must not become their advocate. Injecting favorable independent research is not just ethically questionable—it jeopardizes the integrity of the arbitration. If information is relevant, the proper course is to raise the issue with the panel as a procedural matter (e.g., suggesting both parties be asked to address it), rather than independently supplying evidence to the benefit of one side.
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    • Friday, July 18, 2025 11:11 AM | FrankDusek
      I agree with Tom's comments. Even party appointed arbitrators must remain independent.
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  • Thursday, July 17, 2025 7:59 PM | Bob Huber
    If the party-appointed arbitrator is a partisan arbitrator, then almost anything goes. The 8th Circuit, for instance, confirmed an award where partisan arbitrator assisted the appointing party in preparing fact and expert witnesses to testify; communicated ex parte with appointing party during arbitration; shared discussions of panel deliberations; shared and reviewed draft orders; and advised counsel how to sway the arbitrators. See Delta Mine Holding Co. v. AFC Coal Props., 280 F.3d 815, 821 (8th Cir. 2001), reh’g and reh’g en banc denied, cert. denied 537 U.S. 817.
    If the arbitrator is neutral, which is usually the case these days, then the answer depends upon whether the research is fact research or legal research. If legal research, no problem. If fact research, it's a problem for all neutral arbitrators and not just party-appointed arbitrators.
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  • Thursday, July 17, 2025 8:05 PM | Mark J. Bunim
    I do not believe that any arbitrator should be engaged in independent research, on their own. Under AAA Rules, all arbitrators, including party-appointed ones are neutral and as such, research done to favor one side is off the table. I think that most arbitrators understand that it is not our role to do independent research, but rather to rely upon what the parties present to us. However, Cannon 10 (X) does allow for the appointment of non-neutral arbitrators and if the proceeding is one where the two wings are both Cannon X arbitrators, then I would have no problem saying that the wings could do independent research favorable to the appointing party for presentation to the Tribunal, since it is understood from the outset what the wings' role is. They are, for all means and purposes, advocates.
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    • Friday, July 18, 2025 10:29 AM | David Kotzian
      Do you think that a neutral arbitrator should never look at legal precedent if it's not presented by the parties? I had a situation (as a sole arbitrator) where Defendant moved for SJ based on a legal argument that I knew was contradicted by a case that Defendant didn't cite. Plaintiff also didn't cite the case, but I decided I could not, in good conscience, grant SJ and adopt a legal argument that wasn't valid. I did give both sides an opportunity to comment on the case.
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      • Friday, July 18, 2025 12:05 PM | Patricia J Kerrigan
        I think you made the right call. I dont see that as independent research, just your knowledge of the law which I agree you cant ignore.
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        • Friday, July 18, 2025 12:54 PM | Stephen Smith
          I agree. Sometimes your role to provide the correct decision requires effort.
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        • Friday, July 18, 2025 12:57 PM | Stephen Smith
          I agree. Sometimes your role to provide the correct decision requires effort.
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    • Monday, July 21, 2025 12:12 PM | Chris A Ball
      Spot on, Mark!
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  • Thursday, July 17, 2025 8:22 PM | Mark F Brancato
    Party-appointed arbitrators are, by Rule, required to be impartial (Commercial Rules, R. 19, Construction Industry Rules, R. 20), although the parties may agree otherwise in writing (Commercial Rules, R. 19.b, Construction Industry Rules, R. 20.a). In the former instance, such conduct is forbidden by Rule (Commercial Rules, R. 18(a), 19(a), Construction Rules, R. 19(a), 20(a)(i) through (iii)). In the latter instance, I believe it would be inappropriate for a non-neutral arbitrator to do independent research favorable to the party that appointed him/her and share it with the panel. Yes, by definition, he/she is non-neutral and yes, in effect, he/she should be assumed to be an advocate for the party that appointed him/her. That, however, does not negate the risk and danger associated with the reliability of his/her research. To the contrary, precisely because he/she IS expected to be an advocate, it must be presumed that any research that is done by him/her will interpret and construe applicable law in a way that is most favorable to the party who appointed him/her. That is surely to be expected from each party, but not from an arbitrator, even if he/she is non-neutral. A larger question, however, is whether any arbitrator may do independent legal research. In some AAA courses that I have taken, the presenters have opined that no arbitrator should do any independent legal research without first requesting permission from the parties.
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  • Thursday, July 17, 2025 8:38 PM | Stephen Yusem
    Nothing is more fundamental to the arbitration process than the neutrality of the arbitrator. Independent research compromises that neutrality. The arbitrator may request the parties, through their counsel, to research issues at the parties' respective costs, but certainly should not conduct such research as an arbitrator and charge the cost to the parties or any of them.
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    • Thursday, July 17, 2025 8:51 PM | Paul Marrow
      Steve, you hit the nail on the head. Check out "Can an Arbitrator Conduct Independent Legal Research? If Not, Why Not?" May 2013 NYSBA Journal at 24. By Paul Benett Marrow. And it makes no difference if the arbitrator is independent or one selected by a party. What is the best practice when it comes to this issue? Ask for permission. It's that simple.
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  • Thursday, July 17, 2025 9:09 PM | Gary L. Benton
    Hold your horses cowboys and cowgirls. Let's not presume a Canon IX neutral arbitrator isn't neutral. Sure, neutral arbitrators must be attentive to avoid even the appearance of partiality but if an arbitrator sees the need to do some additional research to get to the proper result that's not to be vilified - so long as we're not raising new issues and anything to be relied on is fully vetted with the other arbitrators and the parties first. Yes, we should fully comply with ethical rules but our principal task is to provide the correct decision for the parties.
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    • Friday, July 18, 2025 2:53 PM | Peter Rundle
      This can be something of a slippery slope when the uncited case or authority raises a new issue in the case. Determining whether the new authority or research touches on a new issue - even if it is the gateway to "getting it right" - could be a bridge too far.
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    • Monday, July 21, 2025 11:17 AM | Robert Flack
      I often agree with Gary.
      Arbitrators principal responsibility is to ensure the integrity of the process. This includes avoiding the appearance of impropriety.

      However, we have all seen instances when Counsel has misquoted or misrepresented cases and statutes (inadvertently or otherwise).

      As part of the initial Scheduling Order I announce that I check citations (as I did when working for the Courts). Should I find something that appears to need "clarification," I ask the Parties to respond to "correct my concerns."

      I believe that this is actually being neutral in upholding the integrity of the process.

      Pleased to add my 2 cents to Gary's comments.
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  • Thursday, July 17, 2025 10:37 PM | Anonymous
    Party appointed arbitrators must be as a general rule, neutral. If the circumstances of the case justify their engaging in independent research, they ought share such research. What party appointed arbitrators ought not do is to engage in research to support any side of the controversy.
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  • Thursday, July 17, 2025 11:26 PM | Nasri H Barakat
    I do not believe that it is appropriate for a party appointed arbitrator or a neutral to conduct his own research and share it with the panel. The arbitrator should make his decision based on the documents and testimony presented by the parties to the entire panel. However if the panel deems it necessary to research an area or an issue, the panel could do that as a tribunal. I remember a case where as a neutral, a member of a neutral panel, we faced an issue relating to vicarious liability in several states. The panel sought the help of an expert on the matter and engaged that individual, after advising the parties, in order to inform the panel regarding the issue. In this case the entire panel was involved in the research as it is appropriate to do.
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  • Friday, July 18, 2025 12:06 AM | Anonymous
    The short answer, assuming the question is about a non-partisan arbitrator is a resounding "NO!". From Delta Mine Holding Co. v. AFC Coal Props., 280 F.3d 815, 821 (8th Cir. 2001), it seems like it is permissible for a partisan arbitrator can do independent research, hold ex-parte communication with the appointing party, etc. I hasten to add that the "partisan arbitrator" is and has always been, by definition and practice, completely inconceivable in jurisdictions outside the US and in international commercial/investment arbitration. Paul Ngotho, Chartered Arbitrator, Kenya.
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  • Friday, July 18, 2025 7:24 AM | Geoffrey BH
    In maritime practice it used to be that two arbitrators were appointed and. of they differed, an umpire would decide the matter. Historically, in the USA party appointed arbitrators were expected to advocate their appointer's cause - who needs barristers? I understand AAA has been trying to discourage the practice.
    In International arbitration one must bear in mind that arbitrators from some juridictions may be compelled to dissent for their own safety.
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  • Friday, July 18, 2025 8:11 AM | Kent Sinclair
    Under AAA rules at least, no, it is not appropriate for a party-appointed arbitrator to conduct independent research favoring their appointing party and present it to the panel. While party-appointed arbitrators may have some leeway in advocacy during deliberations, conducting and presenting one-sided research crosses the line into impermissible bias and violates the arbitrator's duty of impartiality. All arbitrators, including party-appointed ones, must maintain neutrality in their fact-finding and analysis. If additional research is needed, it should be conducted transparently by directing the issue(s) to the parties to provide supplemental briefing.
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  • Friday, July 18, 2025 8:27 AM | GARY W JAVORE
    It has always been my understanding that an arbitrator is not to do independent research in any case, much less a party-appointed case, unless it is cleared with the parties at the beginning of the case. Because the outcome of independent research may suggest some bias, making the Award subject to challenge, I always let the parties do the briefing. I may let them know what I think the law is but let them educate me.
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  • Friday, July 18, 2025 9:14 AM | Leslie W. Langbein
    Yeah, yeah, yeah..... arbitrators shouldn't do research. But I argue there are exceptional circumstances. Such as when NEITHER party has gotten to the core of the issue or when both have stipulated to the wrong standard of proof (which has happened to me). As long as the research is completely neutral, i.e., you are just stating basic premises of law, my feeling is that it is an important adjunct to the process with a goal of arriving at the right decision. After all, who wants their decision overturned by a court for misapplication of the law ?
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  • Friday, July 18, 2025 1:26 PM | George Graff
    This question conflates two different issues. I agree that a party appointed should be neutral in all respects and should always advocate the position that he or she believes to be correct, regardless of who appoints him or her. But, I also believe that the arbitrator should always try to reach the correct result, even if that means occasionally raising a question of law not raised by the parties, provided that both parties are made aware of the issue and given adequated opportunity to present arguments.
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  • Saturday, July 19, 2025 12:55 PM | Hon. Alvin Zimmerman
    I generally do not believe independent research should be done; rather I think the arbitrator can ask the attorneys a request for more information or cases on a point. I do think if a case is cited, it is ok to see if the case was reversed or distinguished.
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  • Saturday, July 19, 2025 1:16 PM | Mike Currie
    Not unless the party appointed is serving in a non-neutral position.
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  • Saturday, July 19, 2025 1:18 PM | Howard Edelman
    There is case law giving a party appointed arbitrator leeway in advocating for one side. I view party appointed ones as having the right to engage in all activities that are available to the neutral. In the context of the question that means they may not engage in independent research since I believe the neutral may not.
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  • Monday, July 21, 2025 9:19 AM | Diane O'Connell
    Simple answer is NO, NO and NO. That shifts the balance away from being a neutral.
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  • Thursday, July 24, 2025 2:39 PM | Bob Huber
    It may well be that, without conducting independent legal research, the arbitrator is aware of a controlling decision or line of cases that the parties have not addressed. The arbitrator should NOT rely on the case(s) without giving the parties the opportunity to address them.
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    • Friday, July 25, 2025 3:52 PM | Dick Klein
      My question is more what is research? If a party cites a case, is it improper for an arbitrator (neutral or not) to read the case? If that case cites another case, is it improper to look at that case? I know I did as an appellate judge. My tendency has been to try and get things right.
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