This challenge protocol applies to challenges exercised under any of the CPR Rules (the “Rules”).
Under this Protocol, “days” are business days in New York unless otherwise specified. The “CPR Challenge Officer” is the CPR professional to whom the CPR President assigns the responsibility of administering and, as provided in this Protocol, deciding challenges. The “Challenge Review Board” is that group of CPR Panelists, not fewer than 12, who have accepted appointments to serve on a pro bono basis in one-year periods, as provided in this Protocol. The “Challenge Review Committee” is that group of three members of the Challenge Review Board who, upon request by the CPR Challenge Officer, have agreed to decide challenges with respect to a particular arbitration proceeding.
1. CHALLENGE PROCEDURE
a. Grounds. As provided in Rule 7.5, any arbitrator may be challenged if circumstances exist or arise that give rise to justifiable doubt regarding that arbitrator’s independence or impartiality. A party may challenge an arbitrator whom it has appointed only for reasons of which the party becomes aware after the appointment.
b. Written Notice. As provided in Rule 7.6, a party may challenge an arbitrator only by a notice in writing to CPR (Attention: CPR Challenge Officer) given no later than the time period specified in Rule 7.6. The notice shall state the reasons for the challenge with specificity.
c. Challenges under a Non-Screened Selection Process. Unless the challenged arbitrator is selected pursuant to the screened process under Rule 5.4 (in which case, see paragraph 1(d) below), the party asserting a challenge shall send copies of the challenge notice to each member of the Tribunal and all other parties, in addition to providing notice to CPR. CPR shall advise the parties in writing and the Tribunal that any member of the Tribunal and any non-challenging party may comment in writing within 10 days after receipt of such CPR advising notice, or such other time frame that CPR deems appropriate. The comments shall be sent to the CPR Challenge Officer. In addition, comments provided by a non-challenging party shall be sent by that party to the other parties.
d. Challenges under Rule 5.4 Screened Selection Process. In the event of a challenge under the screened selection process set forth in Rule 5.4, copies of the written notice shall be sent only to the other parties and CPR (Attention: CPR Challenge Officer). The CPR Challenge Officer will redact the notice to preserve the integrity of the screened process before providing copies to Tribunal members. CPR shall advise the parties in writing and the Tribunal that any member of the Tribunal and any non-challenging party may comment in writing within 10 days after receipt of such CPR advising notice, or such other time frame that CPR deems appropriate. The comments shall be sent to the CPR Challenge Officer. In addition, comments provided by a non-challenging party shall be sent by that party to the other parties.
e. Requested Additional Information. The CPR Challenge Officer or a Challenge Review Committee may request additional information from the parties and Tribunal members.
2. DECISION PROCEDURE
a. Voluntary Withdrawal. A challenged arbitrator may withdraw unilaterally or at the request of all parties, which action shall not imply acceptance of the validity of the challenge.
b. CPR Challenge Officer. Absent a voluntary withdrawal, the CPR Challenge Officer shall in his or her discretion –taking into account the difficulties and complexities of the issues and other relevant circumstances -- either decide the challenge or refer it to a Challenge Review Committee.
c. Convening of Challenge Review Committee. When the CPR Challenge Officer determines to refer a challenge to a Challenge Review Committee, he or she shall convene the Committee by designating the two members and one chair. In requesting members of the Challenge Review Board to serve on a particular Challenge Review Committee, the CPR Challenge Officer shall disclose the identity of the parties to the dispute, their counsel, and the members of the Tribunal, so that the prospective Committee members may decline appointment in the event of conflicts.
d. Challenge Review Committee Decision Process. The CPR Challenge Officer shall provide a copy of the challenge file to each Committee member as soon as possible after expiration of the comment period. The Committee may meet in person or by telephone conference, as the chair may decide. A decision shall require the affirmative vote of at least two members of the Committee and shall be communicated forthwith by the chair to the CPR Challenge Officer.
e. Decision. Every decision regarding a challenge, whether made by the CPR Challenge Officer or by a Challenge Review Committee, shall be made as expeditiously as possible. Challenge decisions shall be deemed to be of an administrative nature and final.
3. ARBITRATOR’S FAILURE TO ACT
In the event that CPR is requested by either party under Rule 7.10 to decide whether an arbitrator has failed to act or is prevented from performing the functions of an arbitrator, the CPR Challenge Officer shall in his or her discretion –taking into account the difficulties and complexities of the issues and other relevant circumstances -- either decide the matter or refer it to a Challenge Review Committee.
4. REPLACEMENT PROCEDURE
In the event of a successful challenge, a substitute arbitrator shall be selected in accordance with the provisions of Rule 7.9.
Other than in the case of a voluntary withdrawal before the decision process commences, the challenging party shall pay to CPR an administrative fee of $2,500 due at the time the CPR Challenge Officer must exercise his or her discretion with regard to the decision process pursuant to Section 2(b). The costs of the challenge shall be considered an arbitration cost under the Rules, which the Tribunal shall apportion in accordance with Rule 16.
CPR CHALLENGE REVIEW BOARD
HON. WILLIAM G. BASSLER
JAMES H. CARTER
M. SCOTT DONAHEY
CLIFFORD J. HENDEL
WILLIAM H. LEVIT, JR.
HARRY N. MAZADOORIAN, DISTINGUISHED SENIOR FELLOW
LAWRENCE W. NEWMAN
LINDA R. SINGER
ROBERT H. SMIT
JOHN M. TOWNSEND
HON. CURTIS E. VON KANN
ROBERT P. WAX
JEROME T. WOLF
STEPHEN P. YOUNGER
HON. MICHAEL D. ZIMMERMAN