Disclosures

Disclosures Arbitrators Must Make in California

Hon. Tricia Bigelow (Ret.)

American Arbitration Association
Signature Resolution

AAA

What to disclose? AAA Rules provide for broad categories of disclosure, mainly, any financial or personal interest or relationship that is “likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence.

“[A]ny circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives. (Commercial Arbitration Rule R-18, subd. (a); Construction Arbitration Rule R-19, subd. (a); Consumer Arbitration Rule R-18, subd. (a) Employment Arbitration Rule R-15, subd. (a).)

“Any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration.” (Labor Arbitration Rule 15.)

“(1) any known direct or indirect financial or personal interest in the outcome of the arbitration; (2) any known existing or past financial, business, professional or personal relationships which might reasonably affect impartiality or lack of independence in the eyes of any of the parties. For example, prospective arbitrators should disclose any such relationships which they personally have with any party or its lawyer, with any co-arbitrator, or with any individual whom they have been told will be a witness. They should also disclose any such relationships involving their families or household members or their current employers, partners, or professional or business associates that can be ascertained by reasonable efforts; (3) the nature and extent of any prior knowledge they may have of the dispute; and (4) any other matters, relationships, or interests which they are obligated to disclose by the agreement of the parties, the rules or practices of an institution, or applicable law regulating arbitrator disclosure.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (A)(1)-(4).)

Who must disclose? The Commercial, Consumer, and Construction Rules provide that the arbitrator, as well as the parties and their representatives are required to make disclosures of any circumstance likely to give rise to a justifiable doubt as to the arbitrator’s impartiality or independence. The Employment and Labor Rules impose the duty to disclose on the arbitrator only.

“Any person appointed or to be appointed as an arbitrator, as well as the parties and their representatives, shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives.” (Commercial Arbitration Rules, R-18, subd. (a).)

“Any person appointed or to be appointed as an arbitrator, as well as the parties and their representatives, must provide information to the AAA of any circumstances likely to raise justifiable doubt as to whether the arbitrator can remain impartial or independent.” (Consumer Arbitration Rules, R-18, subd. (a).)

“Any person appointed or to be appointed as an arbitrator shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives.” (Employment Arbitration Rule 15, subd. (a).)

“Any person appointed or to be appointed as an arbitrator as well as the parties and their representatives shall disclose to the AAA, as promptly as practicable, any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives.” (Construction Arbitration Rule R-19, subd. (a).)

“Any person appointed or to be appointed as an arbitrator shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration.” (Labor Arbitration Rule 15.)

When to disclose? The AAA Rules do not have a specific deadline for disclosure. However, the rules make clear that the arbitrator should make the disclosures before accepting the appointment and as soon as practicable.

Before accepting appointment and “as soon as practicable, at any stage of the arbitration . . .” (Commercial Code of Ethics for Arbitrators, Canon II, subds. (A) and (C).)

“The ethical obligations of an arbitrator begin upon acceptance of the appointment and continue throughout all stages of the proceeding. In addition, as set forth in this Code, certain ethical obligations begin as soon as a person is requested to serve as an arbitrator and certain ethical obligations continue after the decision in the proceeding has been given to the parties.” (Commercial Code of Ethics for Arbitrators, Canon I, subd. (G).)

“as promptly as practicable . . .” (Construction Arbitration Rule R-19, subd. (a).)

Continuous obligation to disclose? The AAA Rules provide for a continuous obligation to disclose. They also place a duty on arbitrators to make reasonable efforts to inform themselves of any circumstance that may require disclosure.

“Such obligation shall remain in effect throughout the arbitration.” (Commercial Arbitration Rule R-18, subd. (a); Consumer Arbitration Rule R-18, subd. (a); Employment Arbitration Rule 15, subd. (a); Construction Arbitration Rule R-19, subd. (a); Labor Arbitration Rule 15.)

“The obligation to disclose interests or relationships described in paragraph A is a continuing duty which requires a person who accepts appointment as an arbitrator to disclose, as soon as practicable, at any stage of the arbitration, any such interests or relationships which may arise, or which are recalled or discovered.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (C).)

Persons who are requested to accept appointment as arbitrators should make a reasonable effort to inform themselves of any interests or relationships requiring disclosure. (Commercial Code of Ethics for Arbitrators, Canon II, subd. (B).)

Presumption to disclose? The AAA Code of Ethics provides that any doubts should be resolved in favor of disclosure. The AAA Rules’ language requiring disclosure of “any circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence” also suggests a presumption in favor of disclosure.

“Any doubt as to whether or not disclosure is to be made should be resolved in favor of disclosure.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (D).)

“[A]ny circumstance likely to give rise to justifiable doubt as to the arbitrator’s impartiality or independence . . .” shall be disclosed. (Commercial Arbitration Rule R-18, subd. (a); Consumer Arbitration Rule R-18, subd. (a); Employment Arbitration Rule 15, subd. (a); Construction Arbitration Rule R-19, subd. (a); Labor Arbitration Rule 15.)

Disqualification? The AAA Rules provide that an arbitrator can be disqualified for lack of independence or any grounds for disqualification provided by applicable law. However, the AAA Rules vest the decision to disqualify the arbitrator with the AAA.

The AAA may disqualify an arbitrator who shows: (1) partiality or lack of independence; (2) inability or refusal to perform his or her duties with diligence and in good faith; or (3) any grounds for disqualification provided by applicable law. (Commercial Arbitration Rules, R-19, subd. (a); Consumer Arbitration Rule R-19, subd. (a); Employment Arbitration Rule 16, subd. (a); Construction Arbitration Rule R-20, subd. (a).)

If a party objects to the continued service of an arbitrator, or if the AAA should so decide to raise the issue of whether the arbitrator should continue on the case, the AAA will decide if the arbitrator should be disqualified. After gathering the opinions of the parties, the AAA will decide and that decision shall be final and conclusive. (Commercial Arbitration Rules, R-19, subd. (b); Consumer Arbitration Rule R-19, subd. (b); Employment Arbitration Rule 16, subd. (b); Labor Arbitration Rule 15.)

Objection? The AAA Rules generally provide that a party must object to the arbitrator at the first available opportunity. The Commercial Arbitration Rules contain more specific provision that requires parties to notify the AAA within seven calendar days of the arbitrator’s appointment.

Objections must be raised at the first available opportunity. Failure to raise a challenge immediately may result in the waiver of a party’s right to object to the arbitrator. (Commercial Arbitration Rule R-41, Construction Arbitration Rule R-42, Employment Arbitration Rule 36.)

“The parties shall notify the AAA within seven calendar days of any objection to the arbitrator appointed. Any such objection shall be for cause and shall be confirmed in writing to the AAA with a copy to the other party or parties.” (Commercial Arbitration Rules, E-4, subd. (c).)

“If a party knows that any of these Rules have not been followed, it must object in writing before proceeding with arbitration or it will lose its right to object that the rule has not been followed.” (Consumer Arbitration Rule R-50.)

Waiver? The AAA Rules provides untimely objections are waived.

“Failure on the part of a party or a representative to comply with the requirements of this Rule may result in the waiver of the right to object to an arbitrator in accordance with Rule R-42 [‘Any party who proceeds with the arbitration after knowledge that any provision or requirement of these Rules has not been complied with and who fails to state an objection in writing shall be deemed to have waived the right to object.’].” (Commercial Arbitration Rule R-18, subd. (a).)

“If a party knows that any of these Rules have not been followed, it must object in writing before proceeding with arbitration or it will lose its right to object that the rule has not been followed.” (Consumer Arbitration Rule R-50.)

“Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with, and who fails to state objections thereto in writing or in a transcribed record, shall be deemed to have waived the right to object.” (Employment Arbitration Rule 36, Construction Arbitration Rule R-42; Labor Arbitration Rule 32.)

Consent? The AAA Code of Ethics provides that a party can consent to having a particular arbitrator when the party is fully informed of the arbitrator’s interests and relationships. The Employment and Construction Rules also provide that the parties can stipulate to a nonneutral arbitrator.

“When parties, with knowledge of a person’s interests and relationships, nevertheless desire that person to serve as an arbitrator, that person may properly serve.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (F).)

“The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-13 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.” (Employment Arbitration Rule 16, subd. (a)(iii); see also Construction Arbitration Rule R-20, subd. (a) [providing same].)

Mandatory disclosures communicated to the parties? The AAA Rules require the AAA to communicate the disclosures to the parties. However, the Commercial Rules recognize the parties may agree to different disclosure procedures or that other laws may apply to disclosure.

“Upon receipt of such information from the arbitrator or another source, the AAA shall communicate the information to the parties . . .” (Commercial Arbitration Rule R-18, subd. (b); Consumer Arbitration Rule R-18, subd. (b); Employment Arbitration Rule 15, subd. (b); Construction Arbitration Rule R-19, subd. (b); Employment Arbitration Rule 15; Labor Arbitration Rule 15.)

“Disclosure should be made to all parties unless other procedures for disclosure are provided in the agreement of the parties, applicable rules or practices of an institution, or by law.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (E).)

Mandatory disclosures of parties communicated to arbitrator? The AAA may communicate the parties’ disclosures to the arbitrator if it deems it appropriate to do so.

“Upon receipt of such information from the arbitrator or another source, the AAA shall communicate the information . . . if it deems it appropriate to do so, to the arbitrator . . .” (Commercial Arbitration Rule R-18, subd. (b); Consumer Arbitration Rule R-18, subd. (b); Employment Arbitration Rule 15, subd. (b); Construction Arbitration Rule R-19, subd. (b); Employment Arbitration Rule 15.)

Multiple arbitrators? In the case of multiple arbitrators, the AAA Code of Ethics advises arbitrators to advise each other of their disclosures.

“Where more than one arbitrator has been appointed, each should inform the others of all matters disclosed.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (E).)

Effect of disclosure?

“Disclosure of information pursuant to this Rule R-18 is not an indication that the arbitrator considers the disclosed circumstance likely to affect impartiality or independence.” (Commercial Arbitration Rules, R-18, subd. (c).)

What if compliance would require disclosure of confidential or privileged information?

“[T]he prospective arbitrator should either: (1) Secure the consent to the disclosure from the person who furnished the information or the holder of the privilege; or (2) Withdraw.” (Commercial Code of Ethics for Arbitrators, Canon II, subd. (H)(1)-(2).)

What about arbitrators appointed by one party who are not subject to rules of neutrality?

“[A]rbitrators should disclose to all parties, and to the other arbitrators, all interests and relationships which Canon II requires be disclosed. Disclosure as required by Canon II is for the benefit not only of the party who appointed the arbitrator, but also for the benefit of the other parties and arbitrators so that they may know of any partiality which may exist or appear to exist.” (Commercial Code of Ethics for Arbitrators, Canon X, subd. (B)(1).)

California

What to disclose? California’s disclosure rules fall into several categories, including personal interests and relationships, information regarding the neutral’s work history and future employment as an arbitrator or mediator, past and present professional relationships with the parties and their representatives, financial interests, membership in organizations that practice discrimination, history of professional discipline, and knowledge of a disputed fact or relationship with a material witness. The rules also contain a catch-all provision, requiring disclosure of any other matter that might cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.

“[A]ll matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial . . .” (Code Civ. Proc., § 1281.9, subd. (a).)

“The existence of any ground specified in Section 170.1 for disqualification of a judge,” including whether “the proposed neutral arbitrator . . . has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years, has participated in, discussions regarding such prospective employment or service with a party to the proceeding.” (Code Civ. Proc., § 1281.9, subd. (a)(1).)

“Any matters required to be disclosed by the ethics standards for neutral arbitrators adopted by the Judicial Council pursuant to this chapter.” (Code Civ. Proc., § 1281.9, subd. (a)(2).)

Specific Disclosures

  • Personal
    • “Any professional or significant personal relationship the proposed neutral arbitrator or his or her spouse or minor child living in the household has or has had with any party to the arbitration proceeding or lawyer for a party.” (Code of Civ. Proc. § 1281.9, subd. (6).)
    • The arbitrator, or the spouse of the arbitrator, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party. (Code Civ. Proc., § 170.1, subd. (a)(4).) A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the arbitrator or the arbitrator’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding. (Code Civ. Proc., § 170.1, subd. (a)(5).)
    • Immediate or extended family members who are a party, the spouse or domestic partner of a party, or an officer, director, or trustee of party. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(1)(A)-(C).)
    • “The arbitrator, or the spouse, former spouse, domestic partner, child, sibling, or parent of the arbitrator or the arbitrator’s spouse or domestic partner is: (i) A lawyer in the arbitration; (ii) The spouse or domestic partner of a lawyer in the arbitration; or (iii) Currently associated in the private practice of law with a lawyer in the arbitration.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(2)(A)(i)-(iii).)
    • “The arbitrator or the arbitrator’s spouse or domestic partner was associated in the private practice of law with a lawyer in the arbitration within the preceding two years.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(2)(B).)
    • “(A) If the arbitrator is not able to properly perceive the evidence or properly conduct the proceedings because of a permanent or temporary physical impairment; and (B) Any constraints on his or her availability known to the arbitrator that will interfere with his or her ability to commence or complete the arbitration in a timely manner.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (e)(2).)
  • Arbitrator/Neutral
    • The names of the parties to all prior or pending noncollective bargaining cases in which the proposed neutral arbitrator served or is serving as a party arbitrator for any party to the arbitration proceeding or for a lawyer for a party and the results of each case arbitrated to conclusion, including the date of the arbitration award, identification of the prevailing party, the names of the parties’ attorneys and the amount of monetary damages awarded, if any. (Code of Civ. Proc. § 1281.9, subd. (3).)
    • The names of the parties to all prior or pending noncollective bargaining cases involving any party to the arbitration or lawyer for a party for which the proposed neutral arbitrator served or is serving as neutral arbitrator, and the results of each case arbitrated to conclusion, including the date of the arbitration award, identification of the prevailing party, the names of the parties’ attorneys and the amount of monetary damages awarded, if any. (Code of Civ. Proc. § 1281.9, subd. (4).)
    • Any matter within the preceding five years where the arbitrator served as a neutral arbitrator or party-appointed arbitrator in a prior or pending noncollective bargaining case involving a party to the current arbitration or a lawyer for a party. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(4)(A)(i)-(ii).)
    • Any matter within the preceding five years where the arbitrator served as a neutral arbitrator in another prior or pending noncollective bargaining case in which he or she was selected by a person serving as a party-appointed arbitrator in the current arbitration. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(4)(A)(iii).)
    • Any matter “within two years before the date of the arbitrator’s proposed nomination or appointment” where the “arbitrator is serving or has served as a dispute resolution neutral other than an arbitrator in another pending or prior noncollective bargaining case involving a party or lawyer for a party and the arbitrator received or expects to receive any form of compensation for serving in this capacity.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(5).)
    • These disclosures include the case information, meaning “(i) The names of the parties in each prior or pending case and, where applicable, the name of the attorney representing the party in the current arbitration who is involved in the pending case, who was involved in the prior case, or whose current associate is involved in the pending case or was involved in the prior case. (ii) The results of each prior case arbitrated to conclusion, including the date of the arbitration award, identification of the prevailing party, the amount of monetary damages awarded, if any, and the names of the parties’ attorneys.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(4)(B)(i)-(ii).)
    • If the number of matters is greater than five, the arbitrator must also disclose: “(i) The number of pending cases in which the arbitrator is currently serving in each capacity; (ii) The number of prior cases in which the arbitrator previously served in each capacity; (iii) The number of prior cases arbitrated to conclusion; and (iv) The number of such prior cases in which the party to the current arbitration, the party represented by the lawyer for a party in the current arbitration or the party represented by the party-arbitrator in the current arbitration was the prevailing party.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(4)(C)(i)-(iv).)
    • “[A]ny current arrangement with a party concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in or, within the last two years, has participated in discussions regarding such prospective employment or service with a party. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(6); see also Code Civ. Proc. § 170.1, subd. (a)(8)(A).)
  • Professional
    • Any attorney-client relationship the proposed neutral arbitrator has or had with any party or lawyer for a party to the arbitration proceeding. (Code Civ. Proc., § 1281.9, subd. (5).)
    • Whether the arbitrator served as a lawyer in the proceeding, or in any other proceeding involving the same issues he or she served as a lawyer for a party in the present proceeding or gave advice to a party in the present proceeding upon a matter involved in the action or proceeding. (Code Civ. Proc. § 170.1, subd. (a)(2)(A).) The arbitrator shall be deemed to have served as a lawyer in the proceeding if within the past two years: (i) a party to the proceeding, or an officer, director, or trustee of a party, was a client of the arbitrator when the arbitrator was in the private practice of law or a client of a lawyer with whom the arbitrator was associated in the private practice of law; or (ii) a lawyer in the proceeding was associated in the private practice of law with the arbitrator. (See Code Civ. Proc. § 170.1, subd. (a)(2)(B)(i)-(ii).) Additionally, an arbitrator who served as a lawyer for, or officer of, a public agency that is a party to the proceeding shall be deemed to have served as a lawyer in the proceeding if he or she personally advised or in any way represented the public agency concerning the factual or legal issues in the proceeding. (See Code Civ. Proc. § 170.1, subd. (a)(2)(C).)
    • Any attorney-client relationship the arbitrator has or has had with a party or lawyer for a party. Attorney-client relationships include the following: “(A) An officer, a director, or a trustee of a party is or, within the preceding two years, was a client of the arbitrator in the arbitrator’s private practice of law or a client of a lawyer with whom the arbitrator is or was associated in the private practice of law; (B) In any other proceeding involving the same issues, the arbitrator gave advice to a party or a lawyer in the arbitration concerning any matter involved in the arbitration; and (C) The arbitrator served as a lawyer for or as an officer of a public agency which is a party and personally advised or in any way represented the public agency concerning the factual or legal issues in the arbitration. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(7).)
    • “The arbitrator or a member of the arbitrator’s immediate family is or, within the preceding two years, was an employee of or an expert witness or a consultant for a party or for a lawyer in the arbitration.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(8).)
    • “Any other professional relationship not already disclosed under paragraphs (2)-(8) that the arbitrator or a member of the arbitrator’s immediate family has or has had with a party or lawyer for a party.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(9).)
  • Financial
    • Whether the arbitrator has a financial interest in the subject matter in the proceeding or in a party to the proceeding. (See Code. Civ. Proc. § 170.1, subd. (a)(3)(A). An arbitrator shall be deemed to have a financial interest in the subject matter in a proceeding or in a party to the proceeding if: (i) a spouse or minor child living in the household has a financial interest, or (ii) the arbitrator or the spouse of the judge is a fiduciary who has a financial interest. (Code Civ. Proc. § 170.1, subd. (a)(3)(A)(i)-(ii).)
    • The arbitrator or a member of the arbitrator’s immediate family has a financial interest in a party, the subject matter of the arbitration, or an interest that could be substantially affected by the outcome of the arbitration. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(10)-(12)
  • Organizations/Political
    • The arbitrator is a member of any organization that practices invidious discrimination on the basis of race, sex, religion, national origin, or sexual orientation. Membership in a religious organization, an official military organization of the United States, or a nonprofit youth organization need not be disclosed unless it would interfere with the arbitrator’s proper conduct of the proceeding or would cause a person aware of the fact to reasonably entertain a doubt concerning the arbitrator’s ability to act impartially. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(14).)
    • Any political contribution from a party or lawyer in the proceeding. (See Code Civ. Proc. § 170.1, subd. (a)(9)(A)-(C).)
  • Knowledge of disputed facts
    • “The arbitrator or a member of the arbitrator’s immediate or extended family has personal knowledge of disputed evidentiary facts relevant to the arbitration. A person who is likely to be a material witness in the proceeding is deemed to have personal knowledge of disputed evidentiary facts concerning the proceeding.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(13).)
    • Whether the arbitrator “has personal knowledge of disputed evidentiary facts concerning the proceeding.” (See Code of Civ. Proc. § 170.1, subd. (a)(1)(A).) The arbitrator shall be deemed to have personal knowledge if the arbitrator, or the spouse of the arbitrator or a person within the third degree of relationship to either of them, or the spouse of such a person is to the arbitrator’s knowledge likely to be a material witness in the proceeding. (See Code of Civ. Proc. § 170.1, subd. (a)(1)(B).)
  • Professional discipline
    • Whether “the arbitrator has been disbarred or had his or her license to practice a profession or occupation revoked by a professional or occupational disciplinary agency or licensing board, whether in California or elsewhere,” including the date of revocation, the name of the agency or board, and the stated reasons for revocation. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (e)(1)(A).)
    • Whether the arbitrator has “resigned his or her membership in the State Bar or another professional or occupational licensing agency or board, whether in California or elsewhere, while public or private disciplinary charges were pending,” including the date of the resignation, the name of the agency or board, and the specific charges. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (e)(1)(B).)
    • Any public discipline of the arbitrator within the preceding 10 years by a disciplinary agency or licensing board where the disciplinary action imposed on the arbitrator is publicly available. (Cal. Rules of Court, RB ETHICS Standard 7, subd. (e)(1)(C).)
  • Catch-all
    • Any other matter that: “(A) Might cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial; (B) Leads the proposed arbitrator to believe there is a substantial doubt as to his or her capacity to be impartial, including, but not limited to, bias or prejudice toward a party, lawyer, or law firm in the arbitration; or (C) Otherwise leads the arbitrator to believe that his or her disqualification will further the interests of justice.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(15).)
    • Any reason the arbitrator believes his or her recusal would further the interest of justice, there is a substantial doubt as to his or her capacity to be impartial, or a person aware of the facts might reasonably entertain a doubt that the arbitrator would be able to be impartial. (See Code Civ. Proc. § 170.1, subd. (a)(6)(A).)

Who must disclose? The duty to disclose falls on the arbitrator.

Arbitrators. (See Cal. Rules of Court, RB ETHICS Standard 1, subd. (a) [standards govern conduct of arbitrators]; Standard 7, subd. (a) [intent of disclosure]; see Code Civ. Proc. § 1281.9, subd. (a).)

When to disclose? California requires arbitrators to make their initial disclosures within 10 calendar days of service of the notice of the proposed appointment. Likewise, the arbitrator must make any supplemental disclosure within 10 calendar days of becoming aware of the matter that must be disclosed.

“[T]he proposed neutral arbitrator shall disclose all matters required to be disclosed pursuant to this section to all parties in writing within 10 calendar days of service of notice of the proposed nomination or appointment.” (Code Civ. Proc., § 1281.9, subd. (b).)

Initial disclosure

“Within 10 calendar days of service of notice of the proposed nomination or appointment, a proposed arbitrator must disclose to all parties in writing all matters listed in subdivisions (d) and (e) of this standard of which the arbitrator is then aware.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (c)(1).)

Supplemental disclosure

“If an arbitrator subsequently becomes aware of a matter that must be disclosed under either subdivision (d) or (e) of this standard, the arbitrator must disclose that matter to the parties in writing within 10 calendar days after the arbitrator becomes aware of the matter.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (c)(2).)

Continuous obligation to disclose? The arbitrator has a continuing duty to disclose.

“An arbitrator’s duty to disclose the matters described in subdivisions (d) and (e) of this standard is a continuing duty, applying from service of the notice of the arbitrator’s proposed nomination or appointment until the conclusion of the arbitration proceeding.” (Cal. Rules of Court, RB ETHICS Standard 7, subd, (f).)

“If an arbitrator subsequently becomes aware of a matter that must be disclosed under either subdivision (d) or (e) of this standard, the arbitrator must disclose that matter to the parties in writing within 10 calendar days after the arbitrator becomes aware of the matter.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (c)(2).)

Presumption to disclose? There is no presumption in California law, however, the disclosure rules contain a catch-all provision requiring disclosure of any matter that might cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.

See the catch-all provision which requires disclosure of any matter that: “(A) Might cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial; (B) Leads the proposed arbitrator to believe there is a substantial doubt as to his or her capacity to be impartial, including, but not limited to, bias or prejudice toward a party, lawyer, or law firm in the arbitration; or (C) Otherwise leads the arbitrator to believe that his or her disqualification will further the interests of justice.” (Cal. Rules of Court, RB ETHICS Standard 7, subd. (d)(15); see also Code Civ. Proc. § 170.1, subd. (a)(6)(A).)

Disqualification? California rules provide that an arbitrators can be disqualified if they fail to comply with the disclosure requirements and the party serves a notice of disqualification within 15 days of the arbitrator’s failure to comply. The California rules also provide the parties with the ability to disqualify an arbitrator even if the arbitrator fulfills his or her disclosure duty, so long as the party serves a notice of disqualification within 15 days after service of the disclosure statement.

An arbitrator is disqualified if: “(1) The arbitrator fails to comply with his or her obligation to make disclosures and a party serves a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281.91; (2) The arbitrator complies with his or her obligation to make disclosures within 10 calendar days of service of notice of the proposed nomination or appointment and, based on that disclosure, a party serves a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281.91; (3) The arbitrator makes a required disclosure more than 10 calendar days after service of notice of the proposed nomination or appointment and, based on that disclosure, a party serves a notice of disqualification in the manner and within the time specified in Code of Civil Procedure section 1281. 91; or (4) A party becomes aware that an arbitrator has made a material omission or material misrepresentation in his or her disclosure and, within 15 days after becoming aware of the omission or misrepresentation and within the time specified in Code of Civil Procedure section 1281.91(c), the party serves a notice of disqualification that clearly describes the material omission or material misrepresentation and how and when the party became aware of this omission or misrepresentation; or (5) If any ground specified in Code of Civil Procedure section 170.1 exists and the party makes a demand that the arbitrator disqualify himself or herself in the manner and within the time specified in Code of Civil Procedure section 1281.91(d).” (Cal. Rules of Court, RB ETHICS Standard 10, subd. (a)(5).)

“A proposed neutral arbitrator shall be disqualified if he or she fails to comply with Section 1281.9 and any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after the proposed nominee or appointee fails to comply with Section 1281.9.” (Code Civ. Proc., § 1281.91, subd. (a).)

“Peremptory challenge”

“If the proposed neutral arbitrator complies with Section 1281.9, the proposed neutral arbitrator shall be disqualified on the basis of the disclosure statement after any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after service of the disclosure statement.” (Code Civ. Proc., § 1281.91, subd. (b)(1).)

Objection? The California Rules provide that a party may object to and disqualify an arbitrator whether or not the arbitrator complies with the disclosure rules so long as the notice of disqualification is served within the statutory period.

“A proposed neutral arbitrator shall be disqualified if he or she fails to comply with Section 1281.9 and any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after the proposed nominee or appointee fails to comply with Section 1281.9.” (Code Civ. Proc., § 1281.91, subd. (a).)

“If the proposed neutral arbitrator complies with Section 1281.9, the proposed neutral arbitrator shall be disqualified on the basis of the disclosure statement after any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after service of the disclosure statement.” (Code Civ. Proc., § 1281.91, subd. (b)(1).)

Waiver? California provides that a party must object within the specified period, generally 15 calendar days, or else the objection is waived.

The right of a party to disqualify a proposed neutral arbitrator is waived if the party fails to serve the disqualification notice within 15 calendar days after service of the disclosure statement unless the proposed nominee or appointee makes a material omission or material misrepresentation in his or her disclosure. (Code Civ. Proc., § 1281.91, subd. (c).)

Consent? If the arbitrator determines he or she cannot be impartial, the parties cannot consent to the arbitrator deciding their case.

Notwithstanding any contrary request, consent, or waiver by the parties, an arbitrator must disqualify himself or herself if he or she concludes at any time during the arbitration that he or she is not able to conduct the arbitration impartially. (Cal. Rules of Court, RB ETHICS Standard 10, subd. (c).)

Disclosure to parties? California law provides parties are entitled to the arbitrator’s disclosure statement. (Code of Civ. Proc. § 1281.91.)

Mandatory disclosures of parties communicated to arbitrator? No reciprocal obligation to disclose imposed on the parties.