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Fairness and Independence in Investment Arbitration: A Critique of Susan Franck's 'Development and Outcomes of Investment Treaty Arbitration'

10 Pages Posted: 15 Jan 2011  

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: December 1, 2011

Abstract

This short article provides a critique of a prominent study, Franck (2009), that used quantitative research tools in order to evaluate potential bias in investment treaty arbitration. The study has been referenced in policy and academic discussions in order to allay concerns about an apparent lack of fairness and independence in investment treaty arbitration. This critique does not suggest that there is evidence of actual bias in investment treaty arbitration. Rather, it is argued that (1) the study by Franck contained findings and conclusions that were unsupported by the results of the study, (2) there is far too little available information upon which to base reliable conclusions about possible bias using quantitative research methods, and (3) the more pressing concern is perceived bias arising from institutional factors.

Suggested Citation

Van Harten, Gus, Fairness and Independence in Investment Arbitration: A Critique of Susan Franck's 'Development and Outcomes of Investment Treaty Arbitration' (December 1, 2011). Available at SSRN: https://ssrn.com/abstract=1740031 or http://dx.doi.org/10.2139/ssrn.1740031

Gus Van Harten (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada
416 650 8419 (Phone)

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