Abstract
Arbitration is celebrated worldwide as an efficient, timesaving, confidential, and flexible alternative dispute resolution method. It allows parties to choose their adjudicators, applicable laws, venues, languages, and whether the sessions will be online or onsite. This customization caters to the unique requirements of each case, leveraging expertise and ensuring expediency. However, despite its effectiveness in resolving disputes outside traditional courtrooms, arbitration sometimes faces accusations of bias, especially from dissatisfied parties. While arbitration aims to be an inclusive dispute resolution system involving all parties in the process, it cannot always meet everyone's expectations. Some biases are more subtle than others. Arbitrators, like any adjudicators, are responsible for upholding fairness, equity, and justice. They must remain independent and impartial. However, the ideal of impartiality is not always achieved in practice, leading some parties to perceive instances of bias. This article explores various forms of bias that may inadvertently influence an arbitrator. By recognizing and addressing these challenges, arbitration can enhance its reputation as a reliable dispute resolution method, increasing transparency and public trust in the process. Although these instances of bias may seem isolated, their implications extend far, affecting a system that is still building its reputation.
Introduction
Arbitrator bias occurs when an arbitrator shows favoritism towards one party, either intentionally or unconsciously, due to factors unrelated to the case's facts and merits. These factors can include prior beliefs and experiences, financial interests, or relationships, whether voluntary or coerced.1
Justice must not only be done but also be seen to be done. In the evolving field of arbitration, it is crucial to uphold the core principles of justice and maintain public confidence in the system at all times2. The independence and impartiality of an arbitrator is a foundational requirement of any arbitration proceeding and applies to all judicial and quasi-judicial processes. The trust that parties place in being able to choose an arbitrator according to their agreement emphasizes the importance of impartiality. Arbitrators must be deliberate in ensuring justice is served in each case.3
Although arbitration is often seen as final, losing parties may try to have the arbitral award set aside. A common tactic is to allege that the arbitrator was biased in favor of the other party. While the basis for challenging an award is specific to each case, allegations of bias are frequently made, sometimes suggesting that the arbitrator should have been removed due to perceived bias.4
Establishing a test for determining bias is challenging for courts. It requires more than identifying an arbitrator's failure to disclose a non-disqualifying link. With many sessions held privately and without public participation, the reasonable man test cannot effectively determine if an unbiased observer would see justice being done.5 Additionally, proving bias against an arbitrator is inherently difficult. It requires evaluating substantial information, as arbitrators often specialize in certain fields, form networks, and have ongoing interactions with practitioners. Determining whether an arbitrator should consider potential conflicts of interest before hearing a case involving familiar parties can be complex and time-consuming.6
Claudia Salomon, the President of the International Chamber of Commerce (ICC) in 2022, discussed the concept of "the bias of process." She noted that before the Covid-19 pandemic, virtual hearings were rarely agreed upon, but they have since become commonplace. She argued that familiarity with the process should be closely examined and that procedural challenges can always be addressed.7
Bias in Arbitration
Bias in arbitration can be challenging to identify because it can manifest either directly or indirectly. Direct bias is evident through an arbitrator's statements, actions, or inactions motivated by undisclosed reasons favoring one party. This article focuses on indirect bias, characterized by an arbitrator's subtle reliance on preconceived notions or routine habits, sometimes confirming their held opinions and beliefs at the expense of the evidence presented.8
Some arbitrators may unintentionally exhibit bias. Bias can be suspected if an arbitrator fails to follow certain formalities or if the reasoning in their award suggests partiality. While many arbitrators are well-trained in recognizing and avoiding bias, enabling them to remain detached and impartial, it is crucial to acknowledge that complete freedom from bias is rare.9
Many national arbitration laws, including those based on the UNCITRAL Model Law, recognize impartiality as a valid ground for challenging an arbitrator and seeking their removal, potentially leading to the setting aside of the resulting award.10 Similarly, under Article 14 of the International Chamber of Commerce (ICC) Arbitration Rules, parties can challenge an award if there are reasonable doubts about the arbitrator's impartiality or independence.11 Under Article 7 of the American Arbitration Association (AAA) International Arbitration Rules12, an award can be challenged based on an arbitrator's failure to disclose known biases or potential conflicts of interest at the time of appointment or those that developed later. Well-established arbitral rules require a solid basis for concerns about an arbitrator's potential bias or lack of independence, rejecting objections based on mere suspicion. This framework aims to ensure fairness and maintain confidence in the arbitration process, emphasizing the importance of impartiality in achieving just outcomes.
Direct Bias
Direct bias arises from an apparent and deliberate interest in the subject matter. It is the most widely recognized form of bias, particularly when an arbitrator has an undisclosed financial interest in the matter or a relationship with one of the parties that extends beyond the case, unknown to the other party.13
As in all professions, arbitration relies heavily on networking and relationships. Some argue that arbitrators chosen frequently by particular parties may feel motivated to rule in favor of those parties to increase their chances of reappointment, given their "financial stake" in maintaining good relations.14 Bias can also emerge when an arbitrator has access to information about the parties from other cases, potentially casting them in a negative light due to their past actions or inactions.15
When an arbitrator has a personal relationship with one of the disputing parties, ethical standards dictate that such a relationship should be disclosed. In prudent cases, the arbitrator should recuse themselves to maintain the perception of fairness and impartiality. Failure to do so can significantly influence how fairness and impartiality are perceived, especially if the arbitrator has become romantically involved with a lawyer representing one side or with one of the parties.16
Indirect Bias
Indirect bias, unlike direct bias, is often unintentional and stems from benign psychological factors or innocuous obstacles such as long-standing cultural differences, linguistic perceptions, and religious perspectives. These factors can complicate cross-border disputes, adding layers of difficulty that are often overlooked.17 While dedicated research on bias in arbitration is limited, studies indicate that unconscious biases can influence decision-making, though there is ongoing debate about the sufficiency of data to conclusively prove the extent of such subconscious biases.18
Justice Scalia of the US Supreme Court noted that "while computers function solely on logic, human beings do not, as all sorts of extraneous factors, emotions, biases, and preferences can intervene, most of which you can do absolutely nothing about." 19 For instance, in the Halliburton case, questions arose about whether Ken Robinson QC's involvement in a related arbitration with a common party affected him cognitively, making him susceptible to unconscious bias that could undermine the perceived equality between the parties.20
Arbitrators may unconsciously seek information that confirms their pre-existing beliefs or opinions about a case, overlooking evidence that contradicts their initial impressions. Their experiences might lead them to encounter similar topics repeatedly, whether through legal practice, scholarly publications, or previous cases. This familiarity can unintentionally influence their judgment, potentially compromising the integrity of the arbitral process. Even unintentionally, an arbitrator might include a sentence in an award that is later used as precedent in a different case, inadvertently endorsing a particular position.21
The complexity of arbitration bias has increased over the years, raising delicate questions about whether factors such as an arbitrator's country of origin matter. For example, would an American state accept a Chinese arbitrator in a case involving U.S. interests, given the delicate nature of recent Chinese-American relations?22 Additionally, if an arbitrator has published a paper or given a lecture taking a firm stance on issues crucial to the dispute they are handling, this could be perceived as bias, given their predisposition on the matter.23
Behavioral economics extensively explore human bias and its impact on decision-making. Jan Philip Postula discusses how judges and arbitrators are affected by cognitive biases such as anchoring bias, where arbitrators rely heavily on the first set of information they receive and may resist changing their position when new information contradicts their expectations. Even if new cases have different characteristics, arbitrators who have recently handled exceptionally vivid cases might unintentionally weigh that information more heavily when making decisions in new cases. Such biases can impact the accuracy and fairness of arbitration decisions, highlighting the need for awareness and mitigation of unconscious biases in the arbitration process.24
Implications of Indirect Arbitrator Bias:
The implications of indirect bias are often harder to detect than direct bias, as arbitrators might be unaware of their own biases. This is particularly concerning because arbitrators, frequently legal practitioners, rely heavily on precedent and past experiences in their decision-making. Despite their best intentions, unconscious bias can subtly influence their judgments.25
Biased decisions, even when unintentional, can lead to unfair outcomes that do not reflect the case's merits. This can result in dissatisfaction and potentially costly legal battles as parties challenge the arbitration award in court.26 While perceptions of bias cannot be entirely ignored, there must be a reasonable basis for such concerns. Striking a balance involves considering the seriousness of the perceived bias and its potential impact on the fairness of the process. In some cases, an arbitrator might choose to step down to alleviate concerns and ensure trust in the arbitration system.27
Addressing Arbitrator Bias:
Addressing cognitive bias in arbitrators requires a multifaceted approach. Unlike other biases where disclosing financial interests and potential conflicts of interest can promote transparency and accountability, these measures might not effectively mitigate cognitive bias.28 The lack of diversity among arbitrators, particularly in international settings, has been criticized for perpetuating biases and a perceived exclusion from the process. Critics argue that the power dynamics of arbitration disadvantage countries in the Global South, which often lack sufficient bargaining power. These countries frequently find themselves on the losing end of arbitration awards due to entrenched prejudices.29
Promoting diversity and inclusion in arbitration can help mitigate bias by bringing diverse perspectives and experiences into the process. This ensures a better understanding of all viewpoints and reduces the likelihood of unconscious bias. Comprehensive training for arbitrators on cognitive bias is also crucial. Such training can enhance self-awareness, enabling arbitrators to identify and mitigate their own biases, thus improving the overall integrity of the arbitration process.30
The International Chamber of Commerce (ICC) has been at the forefront of integrating technology into its arbitration proceedings. This includes providing resources like sample clauses for technology use and guides for conducting virtual hearings. These resources can make arbitration more efficient and streamlined.31 However, the use of technology in arbitration also raises concerns. Some worry that technology could introduce bias or that parties with fewer resources might be disadvantaged if they lack access to certain technologies or information. Despite these challenges, technology offers interesting possibilities for the future of arbitration. Adapting to new tools can drive growth and innovation in the field, with benefits such as streamlining processes and increasing efficiency felt across various types of arbitration, including those involving complex disputes like gas disputes.32
Conclusion
An important yet subtle threat to the arbitration process's credibility and integrity is subconscious arbitrator bias. Our experiences, knowledge, and encounters with certain groups of people at various points in our lives may impact our perceptions and judgments, even if we do not remember these experiences fondly. For example, an arbitrator who has encountered several people from a particular region or country who lied or misled them may subconsciously harbor the notion that individuals from that region have a culture of deceit. This type of bias is not as overt or deliberate as to warrant a legitimate review of an arbitral award. Instead, it is a bias that an arbitrator may not even recognize in themselves unless made aware that their experiences could impact their decision-making. Although the word "bias" often carries a negative connotation, the goal of this discussion is to raise awareness of this subtle form of bias.
By acknowledging these biases, arbitrators can take steps to ensure that their decisions remain fair and impartial. Utilizing technology, such as decision-support tools, can help mitigate the influence of unconscious biases. Promoting transparency and accountability within the arbitration process is also crucial in maintaining its integrity.
By focusing on these measures, arbitrators can enhance the perception of arbitration as a fair and equitable method of conflict resolution. This not only upholds the principles of justice but also strengthens public confidence in the arbitration process, ensuring it remains a trusted avenue for resolving disputes. For more detailed insights, please reach out to us at: info@scp-law.com.
Footnotes
1 Lester R. Kurtz, "Encyclopedia of Violence, Peace, and Conflict" 2nd Edition, (2008) Academic Press
2 Lawson & Lundell LLP, "The Apprehension of Bias in Arbitral Proceedings: A Cautionary Tale for Counsel and Arbitrators", https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/the-apprehension-of-bias-in-arbitral-proceedings-a-cautionary-tale-for-counsel-and-arbitrators Accessed on 20/04/2024
3 Pooja Chakrabarti and Adheesh Agarwal, "India: Law Of Bias In Arbitrators - Certain Interesting Aspects", (2019), https://www.mondaq.com/india/trials-appeals-compensation/802850/law-of-bias-in-arbitrators--certain-interesting-aspects Accessed on 20/04/2024 the Federal
4 Lee Korland, "What an Arbitrator Should Investigate and Disclose: Proposing a New Test for Evident Partiality under Arbitration Act", 53 Case W. Rsrv. L. Rev. 815 (2003) https://scholarlycommons.law.case.edu/caselrev/vol53/iss3/16 Accessed on 20/04/2024
5 Lisa Blomgren Amsler et al., Dispute System Design and Bias in Dispute Resolution, 70 SMU L. REV. 913 (2017) https://scholar.smu.edu/smulr/vol70/iss4/7 Accessed on 23/04/2024
6 Ibid
7 Claudia Salomon, "Maslows Hammer; An Over-Reliance on Familiar Tools", being a paper presented at the 2022 Arbitration week in Tel Aviv, Israel, https://iccwbo.org/wp-content/uploads/sites/3/2022/03/tel-aviv-arbitration week-keynote-claudia-salomon-140322-1.pdf Accessed on 23/04/2024
8 Sarwar, Mohammad Golam, "Determining the Standard of Proof Required to Remove an Arbitrator on the Ground of Bias" (2019). Dhaka University Law Journal The Dhaka University Studies Part-F Volume 30, 2019, https://ssrn.com/abstract=4034352 Accessed on 23/04/2024
9 Ibid
10 Article 13, UNCITRAL Model Law on International Commercial https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration Accessed on 23/04/2024
11 Article 14 of the International Chamber of Commerce (ICC) Arbitration Rules
12 Article 7 of the American Arbitration Association (AAA ) International Arbitration Rules
13 Matthew Gearing, '"A Judge in His Own Cause? Actual or Unconscious Bias of Arbitrators" in (2000) 3 Int'l Arb. L Rev. 46.
14 Gus Van Harten, Investment Treaty Arbitration and Public Law (2007), pp. 152–153
15 Noah Rubins, 'Opening the Investment Arbitration Process: At What Cost, For Whose Benefit?' in Christian Klausegger et al.(eds.), 2009 Austrian Arbitration Yearbook (2009), p. 483.
16 Matheus López CA. "Independence and Impartiality of Arbitrators", The Cambridge Handbook of Judicial Control of Arbitral Awards. Cambridge Law Handbooks. Cambridge University Press; 2020:12-28.
17 Frederico Singarajah, "Unconscious Bias in International Arbitration", http://arbitrationblog.practicallaw.com/unconscious-bias-in-international-arbitration/ Accessed on 24/04/2024
18 Sussman, Edna, Arbitrator Decision Making: Unconscious Psychological Influences and What You Can Do About Them (December 20, 2013). American Review of International Arbitration, Vol., No. 3, 2013 , https://ssrn.com/abstract=2372307 Accessed on 24/04/2024
19 Antonin Scalia, "Making Your Case, The Art of Convincing Judges", (2008),
20 Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48
21 William W. Park, Arbitrator Bias, in 12 Transnational Dispute Management Journal (2015). Available at: https://scholarship.law.bu.edu/faculty_scholarship/15> Accessed on 24/04/2024
22 Ilhyung Lee, "Practice and Predicament: the Nationality of the International Arbitrator" in (2008) 31 Fordham Int'l LJ 603. https://ir.lawnet.fordham.edu/ilj/vol31/iss3/1 Accessed on 24/04/2024
23 Ibid
24 Elm, Jan-Philip, "Behavioral Insights into International Arbitration: An Analysis of How to De-Bias Arbitrators", The American Review of International Arbitration (2017) 2016/Vol.27 No.1, U. of St. Gallen Law and Economics Working Paper No. 2017-01, https://ssrn.com/abstract=2973266 Accessed on 05/05/2024
25 Ibid
26 Jan Kunstyr, Sagar Gupta, "Applicable Tests For Arbitrator Bias: Recent Practice In Select Common Law Jurisdictions", https://arbitrationblog.kluwerarbitration.com/2022/11/24/applicable-tests-for-arbitrator-bias-recent practice-in-select-common-law-jurisdictions/ Accessed on 05/05/2024
27 Sarah Rudolph Cole, Arbitrator Diversity: Can It Be Achieved?, 98 WASH. U. L. REV. 965 (2021). https://openscholarship.wustl.edu/law_lawreview/vol98/iss3/11 Accessed on 05/05/2024
28 Pichrotanak Bunthan, "Arbitrators as Flamingos of Many Colors", https://arbitrationblog.kluwerarbitration.com/2021/02/09/arbitrators-as-flamingos-of-many-colors/ Accessed on 05/05/2024
29 Roberts, Anthea. "Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States". American Journal of International Law. 104. Accessed 05/05/2024
30 Ibid
31 ICC Report on Arbitration and ADR "Leveraging Technology for Fair, Effective and Efficient International Arbitration Proceedings" https://iccwbo.org/wp-content/uploads/sites/3/2022/02/icc-arbitration-and-adr-commission report-on-leveraging-technology-for-fair-effective-and-efficient-international-arbitration-proceedings.pdf Accessed on 06/06/2024
32 Payel Chatterjee, Aman Singhania, Yuvraj Singh Sharma "Technology And Artificial Intelligence: Reengineering Arbitration In The New World", https://www.ibanet.org/tchnology-and-artificial-intelligence-reengineering-arbitration-in-the-new-world Accessed on 06/06/2024
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