Speak Now or Hold Your Peace: Prearbitration Express Waivers of Evident-Partiality Challenges

Abstract

This article proposes that parties and arbitrators should use, and courts should enforce, express prearbitration waivers of certain evident-partiality challenges. Such waivers would allow parties to avoid uncertainty and expense caused by the current widely recognized disarray in the doctrine of evident partiality. While courts and scholars wrestle with trying to define and apply evident partiality doctrine, the solution proposed by this article allows parties to consensually avoid costly post-award litigation through pre-arbitration agreements to waive certain judicial challenges based on claims that the arbitrator displayed evident partiality. Adopting and enforcing express evident-partiality waivers is both practically attractive, and theoretically consistent with arbitration’s fundamental policies of resolving disputes based on the parties’ consent and allowing the parties to choose for themselves the most efficient ways to resolve their dispute, policies reinforced by recent Supreme Court opinions affirming the primacy of parties’ agreements in other areas of arbitration law.