The Politics of International Investment Arbitrators

12 Santa Clara Int'l L. Rev, 2013

Penn State Law Research Paper No. 52-2013

40 Pages Posted: 1 Nov 2013 Last revised: 27 Dec 2013

See all articles by Catherine A. Rogers

Catherine A. Rogers

Pennsylvania State University, Penn State Law; CCLS, Queen Mary University of London

Date Written: January 4, 2013

Abstract

Arbitrators are the lightning rod for investment arbitration’s most contentious political debates. Investment arbitration was originally conceived as a means to depoliticize international investment law. The regime was designed to extricate investment disputes from national courts and gunboat diplomacy, entrusting them instead to a neutral law-bound process. According to its critics, however, investment arbitration is neither a neutral, nor a legitimate law-bound process. They lay most of the blame with international arbitrators. Critics contend that, instead of law and appropriate policy considerations, investment arbitrators’ decisions are often the product of extra-legal factors — from their own ideology, to the nature of disputants, to their personal self-interest For every hypothesis about what extra-legal factors affect investment arbitrators’ decisions, there seems to be an equal and opposite hypothesis.

The purpose of this paper is to examine the state of empirical research about investment arbitrators as a tool for developing a more comprehensive understanding of international adjudication. Through the lens of specific reform proposals that draw from empirical studies in the field, it analyzes the limitations and potential contributions of empirical research to the development of investment arbitration. Part I of this paper examines some of the methodological challenges raised by empirical research that seeks to prove or disprove these claims about investment arbitrators. Part II offers an evaluation of selected reforms that have been proposed for investment arbitration based, in part, on some findings in empirical research. In Section A, I examine Albert van den Berg’s study of dissenting opinions by party-appointed arbitrators, and related proposals to dramatically reduce if not eliminate dissenting opinions. Section B examines Gus Van Harten’s study of jurisdictional rulings, and related proposal for a permanent International Investment Court. Part III examines the risks of allowing substantive policy preferences to affect empirical analysis, and argues for integration of research about investment arbitrators into a comprehensive theory of international adjudication as a neutral and law-bound process. To that end, it proposes that future research be integrated into comparative institutional analysis with other forms of public international adjudication to develop a more comprehensive theory of international adjudication.

Keywords: investment arbitration, arbitrator bias, international arbitration, international adjudication

Suggested Citation

Rogers, Catherine A., The Politics of International Investment Arbitrators (January 4, 2013). 12 Santa Clara Int'l L. Rev, 2013; Penn State Law Research Paper No. 52-2013. Available at SSRN: https://ssrn.com/abstract=2347843

Catherine A. Rogers (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

CCLS, Queen Mary University of London ( email )

Charterhouse Square
London, EC1M 6AX
United Kingdom

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