Matthew Bricker

92 Texas L. Rev. 197

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In the United States, arbitrators enjoy an absolute immunity from civil liability provided that they perform the arbitral acts within their jurisdiction.  Accordingly, arbitrators can only be held liable when they fail to render a decision at all or when they no longer assume responsibilities that are functionally comparable to those of a judge.  In this respect, arbitrators are unique in the world of professionals.  Other professionals (e.g., doctors, lawyers, and accountants) incur civil liability for breach of contract, and tort liability for professional misconduct, i.e., failing to follow the proper standard of care.  This prompts an obvious question: why are arbitrators immune from suit while other professionals are not?

In this Note, Mr. Bricker argues that the distinction is mainly the result of the superficial comparison between judges and arbitrators, and as such, there is no persuasive justification for absolute arbitral immunity.  Hence, Mr. Bricker proposes a new rule of arbitral liability that better holds arbitrators accountable for the professional services they provide.

Mr. Bricker begins by examining the origins and development of judicial immunity and traces its extension to arbitrators.  Mr. Bricker then analyzes the justifications for arbitral immunity and argues that the functional comparison between judges and arbitrators is unpersuasive.  He also argues that, while it is important to protect the independent judgment of the arbitrator, doing so does not require absolute immunity.  Mr. Bricker next crafts a new rule of arbitral liability that better holds arbitrators accountable by first acknowledging the difficulties of the problem and then applying a familiar solution––the business judgment rule.  Finally, Mr. Bricker defends the new rule of arbitral liability against contractual-based criticisms by exploring what would occur if the liability of the arbitrator were to be increased or decreased.