Who Decides Who Decides in International Investment Arbitration?
Richmond University School of Law
June 23, 2013
University of Pennsylvania Journal of International Law, Vol. 35, No. 431, 2013
The past twenty years have witnessed a dramatic rise in international adjudication, and especially in international investment arbitration. As international investment arbitration has become more prominent and pervasive, one of its fundamental tenets has come under fire: the practice of having the parties themselves nominate one or more of the arbitrators. Critics contend that party-appointed arbitrators are inherently biased and thus propose eliminating party-appointments altogether. In this article, I argue that moving away from party-appointed arbitrators is unwarranted and unwise, and would too radically transform international investment arbitration. Instead, I propose a simpler solution: adopting stricter arbitrator challenge rules and enlarging the pool of arbitrators. There is no need to gut the arbitration selection system to fix it. Instead, the solution lies in improving the process of deciding who decides the world's international investment disputes.
Keywords: International Arbitration, Dispute Resolution, Arbitrators.
JEL Classification: K33
Date posted: June 24, 2014 ; Last revised: July 8, 2015