Inside the Arbitrator's Mind

61 Pages Posted: 13 Dec 2016 Last revised: 13 May 2017

See all articles by Susan D. Franck

Susan D. Franck

American University - Washington College of Law

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

James Freda

United Nations

Chris Guthrie

Vanderbilt University - Law School

Jeffrey J. Rachlinski

Cornell Law School

Date Written: November 20, 2016

Abstract

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never demonstrably worse than, national judges analyzed in earlier research. There may be reasons to prefer judges to international arbitrators, but the quality of judgment and decision making, at least as measured in these experimental studies, is not one of them. Thus, normative debates about global dispute resolution should focus on using structural safeguards and legal protections to enhance quality decision-making, regardless of decision maker identity or title.

Keywords: Arbitration, Dispute Resolution, Arbitrators, Investment Treaty Arbitration, International Economic Law, Investor-State Arbitration, ISDS, Law and Psychology, Empirical Legal Studies, Dispute Systems Design, International Courts and Tribunals, Cognitive Illusions, Biases and Heuristics

JEL Classification: C12, C78, C90, D81, F00, F02, F10, F14, F23, F30, F36, K00, K10, K11, K12, K20, K33, K40, K41, O00

Suggested Citation

Franck, Susan D. and van Aaken, Anne and Freda, James and Guthrie, Chris and Rachlinski, Jeffrey John, Inside the Arbitrator's Mind (November 20, 2016). Emory Law Journal, Vol. 66, 2017; Cornell Legal Studies Research Paper No. 16-46; American University, WCL Research Paper No. 2017-08. Available at SSRN: https://ssrn.com/abstract=2884150

Susan D. Franck (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Anne Van Aaken

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

James Freda

United Nations ( email )

New York, NY 10017
United States

Chris Guthrie

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-6823 (Phone)
615-322-6631 (Fax)

Jeffrey John Rachlinski

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-5878 (Phone)
607-255-7193 (Fax)

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