To select and challenge an arbitrator, you work within the rules of whatever institution your arbitration clause names: the institution circulates a candidate list, each side strikes and ranks, and the highest mutually acceptable name gets appointed. If a conflict surfaces at any point, you file a written challenge with the institution within its deadline, laying out specific facts that create doubt about the arbitrator’s impartiality. Miss the deadline or fail to object promptly, and you likely waive the right to raise the issue later.
The decision matters more than most litigants realize. Federal courts can only set aside an arbitration award in narrow circumstances under 9 U.S.C. § 10, so there is no real appellate safety net once an arbitrator is seated and ruling.
What a Qualified Arbitrator Looks Like
No federal statute sets minimum credentials. The Federal Arbitration Act leaves qualifications almost entirely to the parties and their contract. In practice, most arbitrators are retired judges or senior attorneys with decades of experience in a specific area of law or industry. A construction case may call for an engineering background; a reinsurance dispute may require underwriting experience.
What the law does demand is impartiality. Leading institutional rules require arbitrators to be neutral, unbiased, and free of any personal or financial interest in the dispute, the parties, or the lawyers involved.1Practical Law. Challenges Based on Arbitrator Bias in US Arbitration The IBA Guidelines on Conflicts of Interest in International Arbitration use an objective “reasonable third person” test to evaluate whether a conflict exists and a subjective “in the eyes of the parties” test for disclosure obligations.2International Bar Association. IBA Guidelines on Conflicts of Interest in International Arbitration 2024 The IBA Guidelines apply regardless of whether the arbitrator is a lawyer, so a non-lawyer with the right subject-matter expertise isn’t disqualified from serving.
One point worth settling early: on a three-member panel, the arbitrator you appoint is not your advocate. The prevailing view in both domestic and international arbitration is that party-appointed arbitrators are held to the same standards of independence and impartiality as the presiding chair. Older U.S. practice tolerated “non-neutral” party-appointed arbitrators expected to lean toward the appointing side, but that approach has largely been abandoned. Treat every seat on the panel as requiring full neutrality, or risk a challenge later.
How the Selection Process Actually Works
Start with your arbitration clause. It dictates whether the dispute goes to a single arbitrator or a panel, whether specific credentials are required, and which institution administers the case. If the clause names the American Arbitration Association or JAMS, that organization runs the list-and-strike process.
The AAA Process
Under the AAA’s Commercial Arbitration Rules, when the parties haven’t already agreed on an arbitrator, the AAA sends both sides an identical list of ten names drawn from its National Roster. Each side has 14 calendar days to strike unacceptable names, rank the remaining candidates in order of preference, and return the list. The AAA then appoints the highest-ranked candidate both sides found acceptable. If no overlap exists, the AAA can appoint someone from outside the list entirely.3American Arbitration Association. Commercial Arbitration Rules and Mediation Procedures – R-13 A party that fails to return its list within the deadline is deemed to have accepted everyone on it. That is a trap worth knowing about.
The JAMS Process
JAMS follows a similar approach with different numbers. For a sole arbitrator, JAMS sends at least five candidates; for a three-member panel, at least ten. Each party gets seven calendar days to strike a limited number of names (two for a sole arbitrator, three for a panel) and rank the rest. The candidate with the highest composite ranking is appointed.4JAMS. Comprehensive Arbitration Rules and Procedures
Vetting Candidates Before You Rank
The institutional biographies are a starting point, not a finish line. Pull each candidate’s published decisions, professional background, and any articles or presentations that show how they think about issues central to your case. Look at who they’ve ruled for and against, how they handle procedural disputes, and whether their past work puts them close to any party or firm in your matter.
Interviewing a prospective arbitrator before appointment is permitted in many contexts, but the rules are strict. The Chartered Institute of Arbitrators guidelines set out what you can and cannot discuss: past arbitration experience, subject-matter expertise, availability, and in ad hoc cases, fees and appointment terms are fair game.5Chartered Institute of Arbitrators. Interviews for Prospective Arbitrators What you cannot discuss, directly or through hypotheticals, includes the facts of the dispute, the parties’ arguments, the merits, or the candidate’s views on likely issues. Prospective sole or presiding arbitrators should only be interviewed by all parties jointly. Breaking these rules can itself become grounds for a challenge.
Disclosures and What Triggers a Challenge
An arbitrator’s duty to disclose potential conflicts runs continuously from the moment they are considered for the role through the final award. Under the AAA’s Commercial Rules, an arbitrator must disclose any circumstance likely to give rise to justifiable doubt about their impartiality or independence, including any bias, financial interest in the result, or past or present relationship with the parties or their lawyers.6American Arbitration Association. Commercial Arbitration Rules and Mediation Procedures – R-18
The U.S. Supreme Court set the baseline in Commonwealth Coatings Corp. v. Continental Casualty Co., holding that an arbitration award could be vacated when an arbitrator failed to disclose business dealings that might create an impression of possible bias. The Court framed the requirement broadly: arbitrators must disclose any dealings that could create even an appearance of partiality.7Legal Information Institute. Commonwealth Coatings Corp v Continental Casualty Co
In practice, the connections that require disclosure include prior professional relationships with a party’s law firm, stock ownership in a parent company of a party, serving as an expert witness for a party’s affiliate in an unrelated case, and close personal or family ties to anyone connected to the dispute. Disclosure itself does not disqualify the arbitrator. It lets you decide whether to proceed or object. An arbitrator who discloses aggressively earns trust; one who hides a connection and gets caught risks the entire award.
How to File a Challenge
When a disclosure reveals a concerning connection, or when you discover a conflict the arbitrator failed to disclose, act quickly. Deadlines vary by institution, and missing them can permanently waive your right to object.
- Under the AAA Commercial Rules, there is no specific number of days. A party who proceeds with the arbitration after learning of a problem and fails to object in writing is deemed to have waived the right to challenge. The practical message is to object immediately upon learning of the issue.8American Arbitration Association. Commercial Arbitration Rules and Mediation Procedures – R-42
- Under the ICC Rules, a party must submit its challenge within 30 days of receiving notification of the appointment or within 30 days of learning the facts behind the challenge, whichever comes later.9International Chamber of Commerce. ICC 2021 Arbitration Rules – Article 14
- In jurisdictions that have adopted the UNCITRAL Model Law, parties have 15 days after learning of the grounds for a challenge to submit a written statement of reasons.
Regardless of the institution, the written challenge goes to the administering body, not directly to the arbitrator. You need to lay out the specific facts that create doubt about impartiality, not just a vague sense of discomfort. The arbitrator and the opposing party get an opportunity to respond. The institution then reviews everything and makes a decision that is typically final within the arbitral process. If the challenge succeeds, the arbitrator is removed and the selection process restarts for a replacement.
If the Challenge Fails: Vacating the Award
Challenging an arbitrator during the proceedings and attacking a final award in court are two different things. If a challenge during arbitration fails, or if you only discover a disqualifying conflict after the award is issued, you can ask a federal court to vacate the award under 9 U.S.C. § 10(a)(2), which allows vacatur “where there was evident partiality or corruption in the arbitrators.”10Office of the Law Revision Counsel. 9 USC 10 – Same; Vacation; Grounds; Rehearing
The statute doesn’t define “evident partiality,” and federal courts have split on what it means. Some circuits require only that the undisclosed facts create a reasonable impression of bias. Others set a higher bar, requiring that a reasonable person would have to conclude the arbitrator was partial. Under the stricter standard, a mere failure to disclose a relationship isn’t enough unless the relationship itself compels an inference of actual bias. Under the more lenient standard, a nondisclosure that looks bad can be enough even without proof the arbitrator actually favored one side.
Courts generally treat arbitration awards with heavy deference, so the party seeking vacatur carries a serious burden. A speculative connection or a tenuous business relationship from years ago usually will not succeed. The strongest cases involve direct financial interests, ongoing business relationships with a party, or repeated failures to disclose material facts that any reasonable arbitrator would have recognized as relevant.
Replacing an Arbitrator Mid-Case
Arbitrators sometimes need to be replaced during a proceeding, whether because of a successful challenge, resignation, illness, or death. The arbitration clause usually specifies how to handle this. If it doesn’t, or if the specified method breaks down, the Federal Arbitration Act provides a backstop: either party can ask a federal court to appoint a replacement, and that court-appointed arbitrator carries the same authority as one the parties originally named.11Office of the Law Revision Counsel. 9 USC 5 – Appointment of Arbitrators or Umpire
Court appointment is a last resort, and most institutions have their own vacancy procedures that kick in first. But the court option matters if one side tries to stall by refusing to cooperate in selecting a replacement. One warning: unless the agreement says otherwise, a court-ordered arbitration defaults to a single arbitrator, which can meaningfully change the dynamics if your original clause called for a panel.