September 05, 2014 Articles

Pre-Award Removal of an Arbitrator

By Sheila J. Carpenter

Court's Authority to Remove an Arbitrator
Courts have very limited authority to intervene in arbitral matters prior to a final arbitration award. Essentially they may determine the validity and scope (arbitrability of particular issues) of an arbitration agreement and enforce it. See Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d 476 (5th Cir. 2002). Section 4 of the Federal Arbitration Act (FAA), 9 U.S.C. § 4, provides an expedited procedure to accomplish these duties. It is unusual for a court to intervene in an arbitration once it is underway, and even more unusual for a court to remove an appointed arbitrator. The FAA provides a mechanism for a court, on application of a party to an arbitration agreement, to appoint an arbitrator or umpire if normal processes fail, 9 U.S.C. § 5, but no authority to remove an arbitrator or umpire if bias, corruption, or partiality is alleged prior to an award. The Fifth Circuit's opinion in Gulf Guaranty notes that court involvement in the removal of arbitrators is contrary to the FAA's basic policy of ensuring that cases move into arbitration quickly and are decided expeditiously. In addition, there is a risk that hearing such complaints will introduce unacceptable delay into the process, because a party who successfully objected to an arbitrator would not be constrained from objecting to that arbitrator's replacement.

The traditional limits on court interference with ongoing arbitrations notwithstanding, two courts removed arbitrators from major cases at year-end.

Premium Content For:
  • Litigation Section
Join - Now