Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration

Osgoode Hall Law Journal, Forthcoming

Osgoode CLPE Research Paper No. 41/2012

68 Pages Posted: 20 Sep 2012 Last revised: 13 Nov 2012

See all articles by Gus Van Harten

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: April 19, 2012

Abstract

The study examines arbitrator behaviour in the uniquely context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the observed trends to rationales for systemic bias. The key finding is that the observed trends exist and that they are unlikely to be explained by chance. This gives tentative empirical evidence of cause for concern about the use of arbitration in this context.

Keywords: Arbitration, Investment, International, Arbitrator Behaviour, Systemic Bias

Suggested Citation

Van Harten, Gus, Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration (April 19, 2012). Osgoode Hall Law Journal, Forthcoming; Osgoode CLPE Research Paper No. 41/2012. Available at SSRN: https://ssrn.com/abstract=2149207

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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