Contributions and Limitations of Empirical Research on Independence and Impartiality in International Investment Arbitration

29 Pages Posted: 18 May 2011 Last revised: 18 Jun 2011

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: May 5, 2011

Abstract

The use of investment treaty arbitration to decide public law raises concerns about judicial independence and impartiality. These concerns arise from the absence of institutional safeguards of independence that are otherwise present in public law adjudication at the domestic or international level. In this article, opportunities to use empirical methods to study possible bias in investment arbitration are surveyed. The discussion includes a brief consideration of qualitative methods and a critique of two quantitative studies on outcomes in investment arbitration. The discussion then turns to the methodology of an ongoing project involving legal content analysis of decisions by investment treaty tribunals. The main conclusion reached in the paper is that empirical research can make important contributions to scholarly understanding of investment arbitration. On the other hand, empirical research has important limitations in its ability to demonstrate the presence or absence of actual bias, even at a systemic level, thus reinforcing the need for institutional safeguards.

Keywords: Investment arbitration, adjudication, bias, independence, fairness, empirical legal research

Suggested Citation

Van Harten, Gus, Contributions and Limitations of Empirical Research on Independence and Impartiality in International Investment Arbitration (May 5, 2011). Oñati Socio-Legal Series, Vol. 1, No. 4, 2011. Available at SSRN: https://ssrn.com/abstract=1832510

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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