With an increase in the use of arbitration as the preferred method for resolving construction industry disputes has come an increase in concerns with assuring fairness in the process. To this end, one of the recent changes the American Arbitration Association made to the Construction Industry Dispute Resolution Procedures (Including Mediation and Arbitration Rules), was to modify the disclosure requirements in the arbitrator selection process.

Prior Rule 17 of the AAA Rules imposed on proposed arbitrators an obligation to make certain disclosures. That rule has now been replaced with Rule 19(a), which imposes the disclosure obligation, not only on the proposed arbitrators, but also on the parties themselves. Specifically, Rule 19(a) provides as follows:

“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 nay 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. Such obligation shall remain in effect throughout the arbitration.”

The amended rule will help to improve the process, since it will help to avoid, not just the potential partiality of arbitrators, but also the appearance of partiality. Parties who have been accustomed to the disclosure requirement being solely the duty of the proposed arbitrators, need to be aware that the duties have been expanded.

Below is a link to the amended AAA Rule.