Can an Arbitrator Conduct Independent Legal Research? If Not, Why Not?, 81 New York State Bar Association Journal (May 2013)

Abstract: Do arbitrators have authority to undertake independent legal research without authorization by the parties? Or, are they prohibited from doing so, as many arbitrators believe? These are vexing questions. For answers, this article looks for guidance in the Federal Arbitration Act (FAA), state arbitration statutes, case law, and the rules of several arbitration institutions, as well as the Code of Ethics for Arbitrators in Commercial Disputes. The takeaway is that if an arbitrator wants an award that will withstand an attack based on “evident partiality,” “misconduct” or the “exceeding of powers,” there are good reasons to refrain from unauthorized legal research. This may seem counter intuitive. Arbitration is a creature of contract and the implications that flow from that conclusion heavily impact the answers to the questions being proposed.