The Sociological Dimension of International Arbitration: The Investment Arbitration Culture
Draft for - Thomas Schultz and Federico Ortino (eds.), Oxford Handbook of International Arbitration (Oxford University Press, Forthcoming)
Hebrew University of Jerusalem International Law Forum Working Series 06-17
33 Pages Posted: 15 Jul 2017 Last revised: 25 Aug 2017
Date Written: July 9, 2017
Sociological analysis of international arbitration begins from the premise that individuals’ behaviour and normative choices are significantly affected by socio-cultural factors and processes. Thus, behaviour of actors participating in international arbitration is not isolated from its social context; and is rather deeply embedded in various sociological factors and processes (such as norms, socialization, or social control). This chapter is primarily focused on the investment arbitration community; analysing the interactions between the social features of this community and two significant issues in investment arbitration: (i) the application of human rights law by investment arbitrators, (ii) the constraining nature of norms regarding side arbitrator impartiality. While the first issue focuses on the particular features of the investment arbitration community and its interactions with another social group (the human rights community), the second issue regarding arbitrators' impartiality is explored by employing several theoretical perspectives relating to the structure-agency debate in sociological literature.
Section II briefly sketches out the features of the investment arbitration community. Sections III and IV illustrate the scholarly and practical value of the sociological perspective by analysing two prominent issues in contemporary international investment law. Section III presents a sociological analysis of the socio-cultural interactions between the investment arbitration and human rights communities, and their impacts on the limited application of international human rights law by investment tribunals. Section IV addresses one of the fundamental questions in sociological literature in the (limited) sphere of the investment arbitration community: to what extent and how do cultural patterns influence arbitrators? To answer this question, this Section succinctly employs three sociological theoretical lenses (the structural-functional, symbolic-interactionist and Swidler's approaches) to examine some recent empirical results regarding investment arbitrators' impartiality. Section V briefly recaps the main conclusions drawn from the preceding sections and offers some directions regarding future research work in this field.
Keywords: international arbitration, sociology, international law, international economic law, arbitration appointed
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