Independent Review of Arbitrator Challenges
An arbitrator challenge creates an important institutional question. Should the same body that administers an arbitration also decide whether an arbitrator should continue to sit?
Even where a challenge is handled fairly, combining those functions can create concerns about whether the decision is sufficiently independent from the day-to-day administration of the case.
Rule 12 of the CORD Rules separates the two.
Challenges to arbitrators are not determined by a body internal to CORD. They are referred to an independent Appointments Council, which determines whether the challenge should succeed. The Registrar undertakes a preliminary review of a challenge, which is finally determined by the Appointments Council.
Separating administration from decision-making
A party may challenge an arbitrator where there are justifiable doubts about the arbitrator's independence or impartiality, or where the arbitrator lacks a qualification agreed by the parties.
Once a challenge is filed, the Registrar conducts a preliminary review. If the challenge discloses a prima facie ground, it is referred to the Appointments Council for determination, without any challenge fee being payable. The preliminary review does not decide the merits and does not bind the Council Member who ultimately considers the challenge.
This creates a clear separation between administering the arbitration and deciding whether an arbitrator should continue to sit.
A challenge remains available even after preliminary review
CORD's procedure also preserves a party's ability to pursue a challenge where the Registrar does not consider a prima facie ground to have been shown.
In that situation, the party may still require the challenge to be referred to the Appointments Council by paying the prescribed challenge fee. The final decision therefore does not rest on the Registrar's preliminary assessment.
Independence built into the process
Rule 12 also addresses conflicts within the Appointments Council itself. A Council Member cannot determine a challenge where they have a personal conflict, including where they were involved in the appointment being challenged.
Unless the arbitrator withdraws or the parties agree to a replacement, the decision on the challenge must also be given through a reasoned order.
Why it matters
A challenge process must not only be fair, but also independent from the day-to-day administration of the arbitration.
Rule 12 builds that independence into the process. Challenges are decided by the Appointments Council through a defined and time-bound procedure. This strengthens confidence in both the tribunal and the way challenges are resolved.