Are Arbitrators Biased in ICSID Arbitration? A Dynamic Perspective

Authors

Weijia Rao, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

1-28-2021

ISSN

0144-8188

Publisher

Elsevier

Language

en-US

Abstract

Concerns over arbitrator impartiality and independence in ICSID arbitration have led to reform proposals geared towards a multilateral investment court. Due to the ad hoc nature of appointments, it has been suggested that arbitrators may strategically render decisions in biased ways with the goal of encouraging reappointments. Although criticism against arbitrator bias has attracted significant attention, so far limited empirical evidence has been provided to support such concerns. This paper introduces a dynamic perspective to examine concerns of bias arising from ad hoc appointment. I find that contrary to conventional views held by critics of investor-state arbitration, on average, arbitrators tend to decide against their reputation from prior decisions in ICSID arbitration, which implies an effort to establish a reputation for being neutral and unbiased. This finding challenges one of the premises of proposals to replace arbitration with an investment court.

Comments

Article no. 105980

Recommended Citation

Weijia Rao, Are Arbitrators Biased in ICSID Arbitration? A Dynamic Perspective , in 66 International Review of Law and Economics (2021).
Available at: https://doi.org/https://doi.org/10.1016/j.irle.2021.105980