Best Practices for Arbitrator Interviews: What Every Business and Litigator Needs to Know

Selecting the right arbitrator is one of the most important decisions in any commercial dispute. Yet in many Canadian markets, arbitrator vetting and communications remain surprisingly informal. This can create risks that jeopardize the appointment and the process – there may be a later challenge to the arbitrator and/or the final award.

This guide outlines best practices for engaging with prospective arbitrators before their appointment, permissible topics, disclosure obligations, common red flags, and practical steps to reduce the risk of later challenges alleging bias, conflicts, or improper communications.

Particular attention is given to how the vetting and interview process should differ for the appointment of a sole arbitrator or a representative appointed by a party for a three-person tribunal, where each party appoints an arbitrator and those arbitrators jointly appoint a Chair of the tribunal, after consultation with the party that appointed them. 

Understanding where those lines are drawn is critical for counsel and parties, including in-house teams and business decision-makers involved in the selection process.

Getting The First Contact Right

The first contact with a prospective arbitrator presents a delicate balancing exercise. Parties and counsel want enough information to assess a candidate's suitability and identify potential conflicts, while ensuring that the communication does not compromise the arbitrator's independence or impartiality, or the integrity of the process.

Communications will be very different if the party is seeking to appoint a sole arbitrator or a party-appointed arbitrator who will be a member of a three-person tribunal.

A sole arbitrator is appointed by all parties and should communicate only with a party in limited circumstances. Ideally, the parties will have agreed that the arbitrator is a candidate for appointment and make contact together. However, it is not uncommon for a party to reach out to a sole arbitrator candidate to provide basic information to allow for a conflict search and to ask about availability and hourly rates before proposing the candidate to the other parties. All such communications should be in writing and disclosed to the opposing party before an arbitrator is appointed so that they will not form the basis of a later challenge.

By contrast, a party considering their candidate for appointment to a three-person tribunal may communicate with that candidate directly about a broader range of issues, including by way of an interview, provided the discussions are limited and neutral. It is good practice to maintain a written record of such communications in case of a challenge.

Getting this wrong can have significant consequences, including:

• A challenge to the arbitrator's appointment, which may be heard by the arbitrator or tribunal, the administering institution, or a court.

• The arbitrator's resignation before or during the proceeding.

• Additional cost, delay, and procedural complexity.

• An application to set aside the final award.

The Ethical Duties of an Arbitrator

Independence and Impartiality

Every arbitrator, whether appointed as a sole arbitrator or as a party-appointed member of a tribunal, must be both independent and impartial.

• Independence refers to the arbitrator's relationship to the parties, counsel, and the other arbitrators.

• Impartiality refers to the arbitrator's view of the case and the issues, measured by the arbitrator’s conduct, and requires the arbitrator to treat the parties equally and fairly.

A common misconception is that a party-appointed arbitrator serves as an advocate for the party that selected them. However, arbitrators are decision-makers, not advocates. Appreciating the difference between an advocate and a decision-maker is essential to preserving the integrity of the arbitration process and avoiding challenges based on actual or a reasonable apprehension of bias.

Disclosure Obligations and Conflict Checks

In Canada, an arbitrator has an ongoing duty to disclose to the parties any circumstances that may give rise to a reasonable apprehension of bias or justifiable doubts as to the arbitrator’s independence or impartiality, such as actual or potential conflicts of interest, prior or ongoing professional relationships, financial interests, or more than one appointment by the same party or counsel. A practical mechanism arbitrators use to comply with their disclosure obligations is a conflict search.

Parties and their counsel also have a duty of disclosure so that potential conflicts about which the arbitrator is not aware do not create problems later on.

At the outset of an arbitration, this disclosure allows the parties to decide whether to appoint a sole arbitrator or object to the appointment of an arbitrator that another party seeks to appoint as its party’s appointee. The disclosure obligation continues from the start of the arbitration to its conclusion. This is why the conflict search should be broad. For example, if it is contemplated that corporate representatives or experts will be witnesses, it is better to make disclosure before the arbitration starts to avoid potential issues later on.

Information to Provide Before Appointment

Before appointment, counsel should provide enough information to allow the candidate to conduct a meaningful conflict search. This will typically include:

• The full names of the parties and relevant affiliates.

• Key party representatives and any witnesses who are likely to be called (if known).

• The names of counsel and law firms involved.

• A copy of the arbitration agreement.

• Whether the arbitration is domestic or international, which determines which arbitration legislation applies

• The seat (the legal location) of the arbitration, which may be different from the venue for the hearing.

• A brief factual description of the dispute – without argument.

• Whether the arbitrator must have specialized expertise.

• Any institutional rules of procedure the parties have agreed upon.

• The language of the arbitration.

• Any timing requirements applicable to the release of the final award.

• Any third-party funding arrangement.

• For a three-person tribunal, whether another arbitrator has already been appointed.

Interview Guardrails

Parties may seek to interview an arbitrator candidate before appointment.

A candidate for appointment as a sole arbitrator should never agree to an interview unless all parties are present.

A party may interview a party-appointed candidate, but the acceptable parameters of the interview are limited. An interview is not an opportunity to advocate a party's position, seek strategic advice, or gauge how a candidate might decide the dispute. The discussion should be brief, professional, and focused on suitability, availability, and potential conflicts, not the merits. It is often recommended that the arbitrator candidate keep the interview brief and circulate an agenda beforehand to ensure discussions do not stray into impermissible areas.

Permissible topics

Discussions during an interview may address:

• Expertise and background.

• Tribunal experience.

• Approach to the arbitration process.

• Availability and conflicts.

• A high-level overview of the dispute.

Prohibited topics

The candidate should never be asked to express, or appear to express, a view on the dispute. Other prohibited topics are:

• Detailed discussions of the facts or merits of the dispute.

• Advocacy on behalf of a party.

• Requests for legal advice.

• Requests for the candidate's views on disputed issues.

• Questions designed to determine how the candidate might decide the case.

• Hypothetical questions that mirror issues likely to arise in the arbitration.

For more information

A leading resource on interview conduct and permissible topics is the Chartered Institute of Arbitrators' Guidelines on Interviews for Prospective Arbitrators. While these guidelines are not binding, they provide a detailed roadmap for structuring the interview process. The International Bar Association (IBA) Guidelines on Party Representation in International Arbitration (in particular, guidelines 7 and 8) offer a more concise, complementary framework. These documents are best practices that, if adhered to, will reduce the risk that the appointment will be challenged later.

Communications After Appointment

Once the tribunal has been constituted, communications become considerably more restricted.

As a general rule:

• Parties should only communicate with the tribunal as a whole.

• No party should communicate privately with a sole arbitrator or tribunal member.

• No sole arbitrator or tribunal member should communicate with one party without the others.

Limited exceptions may arise where:

• The arbitration agreement or applicable rules authorize the chair of the tribunal to deal with certain procedural matters without the other members of the tribunal; or

• The parties’ agreement or applicable rules permit an application for urgent interim measures without notice to the other parties. For example, such an order may be made if there is a concern that a party is hiding or depleting assets, which will prejudice the party seeking the order if it wins the arbitration. If such an order is made, the arbitrator will require that the party affected be given a copy of the order and an opportunity to challenge it.

Practical Checklist

Sole Arbitrator Candidates

• Keep communications transparent and preferably in writing.

• Limit communications with one party to availability, conflicts, qualifications, expertise, neutral summary of the dispute, and fees.

• No pre-appointment interview unless all parties are present.

• Avoid substantive discussions (whether oral or written) unless all parties have notice and an opportunity to participate.

Party-Appointed Arbitrator Candidates

• Unilateral interviews are permissible during the selection process.

• Focus on expertise and background, tribunal experience, approach to the arbitration process, availability and conflicts, high-level overview of the dispute, and fees.

• Do not seek views on the merits or likely outcome of the dispute or “hypotheticals”.

• Maintain written record of interview, either by recording/transcript or contemporaneous notes.

Conclusion

Arbitration is valued for its efficiency, confidentiality, flexibility, and finality. Those advantages can be undermined before the arbitration even begins if arbitrator communications are handled casually.

The safest approach is to determine whether a sole arbitrator or a three-member tribunal will be appointed, provide candidates with sufficient information for a meaningful conflict search, keep communications structured and documented, and avoid any communications that could be characterized as advocacy or merits testing. A disciplined selection process helps protect the tribunal's integrity, the award's enforceability, and the parties' confidence in the arbitration process.