Arbitrator's Ethics

An anonymous attorney emailer sends us the following information and analysis:

There has been discussion about whether two arbitrators can make a decision or “clarification” without involving the third. In my view, that violates the Code of Ethics for Arbitrators in Commercial Disputes, which can be found here: http://www.abanet.org/dispute/commercial_disputes.pdf.

For all those trying to rationalize the arbitrators' misconduct, consider what the The Code of Ethics for Arbitrators in Commercial Disputes has to say:
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"CANON IV. AN ARBITRATOR SHOULD CONDUCT THE PROCEEDINGS FAIRLY AND DILIGENTLY.

* * *

G. Co-arbitrators should afford each other full opportunity to participate in all aspects of the proceedings.

Comment to paragraph G

Paragraph G of Canon IV is not intended to preclude one arbitrator from acting in limited circumstances (e.g., ruling on discovery issues) where authorized by the agreement of the parties, applicable rules or law, nor does it preclude a majority of the arbitrators from proceeding with any aspect of the arbitration if an arbitrator is unable or unwilling to participate and such action is authorized by the agreement of the parties or applicable rules or law. It also does not preclude ex parte requests for interim relief. "


And yes, these proceedings are governed by the American Arbitration Association's Commercial Rules, with supplementary procedures for anti-doping actions:

"R-1. Applicability

The Commercial Arbitration Rules of the AAA, as modified by these Supplementary Procedures for the Arbitration of Olympic Sport Doping Disputes (Supplementary Procedures) shall apply to arbitrations, which arise out of the USADA Protocol. To the extent that there is any variance between the Commercial Arbitration Rules and the Supplementary Procedures, the Supplementary Procedures shall control."

American Arbitration Association Arbitration of Olympic Sport Doping Disputes Supplementary Procedures as of August 2004.


I would think the attendance of McLaren and Brunet at a WADA conference during the pendency of these proceedings is also suspect under Canon I (C):


"CANON I. AN ARBITRATOR SHOULD UPHOLD THE INTEGRITY AND FAIRNESS OF THE ARBITRATION PROCESS.

C. After accepting appointment and while serving as an arbitrator, a person should avoid entering into any business, professional, or personal relationship, or acquiring any financial or personal interest, which is likely to affect impartiality or which might reasonably create the appearance of partiality. For a reasonable period of time after the decision of a case, persons who have served as arbitrators should avoid entering into any such relationship, or acquiring any such interest, in circumstances which might reasonably create the appearance that they had been influenced in the arbitration by the anticipation or expectation of the relationship or interest. Existence of any of the matters or circumstances described in this paragraph C does not render it unethical for one to serve as an arbitrator where the parties have consented to the arbitrator's appointment or continued services following full disclosure of the relevant facts in accordance with Canon II."


It's one thing for the USADA-selected arbitrator to be cavorting with WADA officials during the pendency of these proceedings, but the "neutral" arbitrator as well?

The actions by McLaren and Brunet violate the Code of Ethics to which they are subject. I'd be surprised if Landis’ attorneys are not entertaining submitting a request to have the "neutral" arbitrator removed from the panel:

"R-17. Disqualification of Arbitrator

(a) Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for

(i) partiality or lack of independence,

(ii) inability or refusal to perform his or her duties with diligence and in good faith, and

(iii) any grounds for disqualification provided by applicable law. The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-12 shall be nonneutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence.

(b) Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive."

[UPDATE FROM A COMMENT BELOW]

The American Arbitration Association Arbitration of Olympic Sport Doping Disputes Supplementary Procedures provide that the party appointed arbitrators are to be neutral:

R-12. Qualifications of an Arbitrator

* * *

2. Party-appointed arbitrators are expected to be neutral and may be disqualified for the reasons set forth in R-19.

The Code of Ethics for Arbitrators in Commercial Disputes specifically addresses party-appointed arbitrators in CANON IX:

CANON IX. ARBITRATORS APPOINTED BY ONE PARTY HAVE A DUTY TO DETERMINE AND DISCLOSE THEIR STATUS AND TO COMPLY WITH THIS CODE, EXCEPT AS EXEMPTED BY CANON X.

A. In some types of arbitration in which there are three arbitrators, it is customary for each party, acting alone, to appoint one arbitrator. The third arbitrator is then appointed by agreement either of the parties or of the two arbitrators, or failing such agreement, by an independent institution or individual. In tripartite arbitrations to which this Code applies, all three arbitrators are presumed to be neutral and are expected to observe the same standards as the third arbitrator.

...

CANON X. EXEMPTIONS FOR ARBITRATORS APPOINTED BY ONE PARTY WHO ARE NOT SUBJECT TO RULES OF NEUTRALITY.

...

Since the supplemental rules explicitly provide that the party-appointed arbitrators are expected to be neutral, the exemption set forth in Canon X of the Code of Ethics for Arbitrators in Commercial Disputes is inapplicable to them. Pursuant to Canon IX of the Code, these arbitrators must adhere to the same ethical standards as the third arbitrator.

Also worth noting is that the Ethics Standards for Neutral Arbitrators in Contractual Arbitration adopted by Judicial Council of California 04/19/2002 may be applicable to these proceedings.