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Arbitrator Behaviour in Asymmetrical Adjudication (Part Two): An Examination of Hypotheses of Bias in Investment Treaty Arbitration

65 Pages Posted: 26 Jan 2016 Last revised: 19 Feb 2016

Gus Van Harten

York University - Osgoode Hall Law School

Date Written: January 25, 2016

Abstract

This article reports on a study of potential systemic bias in the resolution of ambiguous legal issues by investment treaty arbitrators. It outlines tentative but significant findings that the arbitrators in general tended to favour (a) foreign investors over states in general, (b) foreign investors from major Western capital-exporting states over other foreign investors, and, albeit based on more limited data, (c) the U.S. as a respondent state over other respondent states. The evidence is derived from an extensive content analysis of the arbitrators’ resolution of 14 legal issues that are contested among arbitrators or in secondary literature. The findings clearly supported initial expectations of systemic bias arising from unique incentives of the arbitrators. Yet the study also has important limitations and there is a range of possible explanations for the findings, some not raising concerns of inappropriate bias. Broadly, the findings lend support to perceptions that the design of investment treaty arbitration does not support fair and independent adjudication of the boundaries of sovereign authority and of disputes involving public funds.

Keywords: Investment treaties, trade agreements, arbitration, discretion, bias

JEL Classification: K00, K10, K19, K20, K22, K23, K40, K41

Suggested Citation

Van Harten, Gus, Arbitrator Behaviour in Asymmetrical Adjudication (Part Two): An Examination of Hypotheses of Bias in Investment Treaty Arbitration (January 25, 2016). Osgoode Legal Studies Research Paper No. 31/2016. Available at SSRN: https://ssrn.com/abstract=2721920 or http://dx.doi.org/10.2139/ssrn.2721920

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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