Arbitration and Judicialization

23 Pages Posted: 23 Jan 2012

Date Written: January 20, 2012

Abstract

The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic “Principal-Agent” framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina’s response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization.

Keywords: Principal-Agent framework, International Center for the Settlement of Investment Disputes (ICSID), arbitration, judicialization, proportionality, balancing

Suggested Citation

Stone Sweet, Alec, Arbitration and Judicialization (January 20, 2012). Oñati Socio-Legal Series, Vol. 1, No. 9, 2011, Available at SSRN: https://ssrn.com/abstract=1988923

Alec Stone Sweet (Contact Author)

HKU ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

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