Blinding International Justice
63 Pages Posted: 25 Aug 2016 Last revised: 15 Nov 2016
Date Written: November 14, 2016
The past twenty years have seen a tremendous rise in international dispute settlement mechanisms. As international adjudication has become more prominent and pervasive some of its most fundamental tenants have also come under deep scrutiny. Recently, a new debate has emerged regarding party-appointments — a widespread feature in international arbitration. While international arbitrators, like national judges, are supposed to be neutral and impartial and to exercise independent judgment, practitioners and scholars concur that arbitrators often lean in favor of the nominating party. As a result of concerns over lack of impartiality, “blind appointments” — wherein nominees do not know which party appointed them — have been suggested as a corrective intervention in the arbitration field.
This Article explores the causes, implementation challenges, and possible limitations of blind appointments in arbitration. It makes three contributions: First, it proposes a theoretical framework to understand the different biases introduced with the nomination of judges in international adjudication: compensation, affiliation, selection and epistemic effects. Second, considering new data from investment arbitration proceedings and experimental surveys on arbitrators, it shows that blinding is a promising intervention to target affiliation effects while maintaining potential benefits resulting from party participation in the tribunal’s formation. Third, it explains how blind appointments may have important limits as to their corrective properties and explores the conditions that are more favorable for the success of this proposal in other fields of international adjudication.
Keywords: International Dispute Settlement, International Adjudication, International Arbitration, Party Appointments, International Arbitrators, Impartiality, Blind Appointments
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