LYING, STEALING, AND CHEATING: THE ROLE OF ARBITRATORS AS ETHICS ENFORCERS

This Article will begin in Part II with a short description of the expansion of judicial immunity, which is one of the biggest motivating reasons for concern for arbitral ethics. If judicial immunity were not extended to the arbitral forum, parties who fall victim to unethical practices in the arbitral forum might have recourse. Immunity for arbitration participants, then, creates a pressing need for other reform. Reform, as noted in Part III, could be achieved through changes to the law—particularly by expanding the criminal laws dealing with crimes against the administration of justice to the arbitral forum or ever so slightly loosening the standards of vacatur in the event of unethical conduct, or both. Recognizing that these legal reforms are unlikely, Part IV of this Article examines the arbitrator’s role as the ethics enforcer. Part V will consider the historical role of arbitrators in policing the conduct within their tribunals, as well as examine the rules and procedures of the largest arbitration provider organizations. Arbitrators, indeed, should be the first line of defense in dealing with allegations of unethical conduct—as well as being vigilant themselves during their tribunal. Realistically speaking, arbitrators are the only true ethics enforcers in the arbitral forum, a role that they rightly deserve. Without arbitrators taking on this role, the integrity of the arbitration process will be in jeopardy. This Article concludes by acknowledging the role of arbitrator as ethics enforcer while still urging for legal change as an ethics “backstop.