In Commonwealth Coatings Corp. v. Continental Casualty Co., the United States Supreme Court held that when a neutral arbitrator fails to disclose a relationship that gives rise to an impression of possible bias, the arbitrator's award is subject to vacation. California courts adopted this holding and have applied it when interpreting the California Arbitration Act. Identifying a "relationship that gives rise to an impression of possible bias" might seem straightforward; however, the California courts have struggled with this question.
This Note surveys the California court of appeal decisions interpreting and applying the impression of possible bias standard, and concludes that an arbitrator should be required to disclose relationships that (1) may lead an arbitrator to place unusual trust or confidence in one side or the other, and (2) are characterized by an atmosphere of pervasive trust and confidence. This formulation of the standard, the author argues, will preserve the viability of arbitration in California by helping to ensure reliable decisions by arbitrators, and will better protect the rights of parties who opt out of the courts to have an impartial decision maker determine the outcome of their cases. The Note also applies the impression of possible bias standard to arbitration proceedings involving two institutional arbitration providers-the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services, Inc. (JAMS)-and concludes that decisions rendered under the auspices of JAMS are more susceptible to vacation than those rendered under the auspices of the AAA.
Matthew David Disco,
The Impression of Possible Bias: What a Neutral Arbitrator Must Disclose in California,
45 Hastings L.J. 113
Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss1/4