Arbitration in its Psychological Context: A Contextual Behavioural Account of Arbitral Decision-Making
Oxford Handbook of International Arbitration (2018)
39 Pages Posted: 30 Apr 2018
Date Written: February 7, 2018
While traditionally arbitration scholarship focused on practical issues, arguing for refinements of arbitration laws or attempting to identify a core of procedural "best practices", a growing strain of arbitration scholarship has begun to focus on developing a deeper and more ambitious understanding of arbitration. Psychology in particular has a clear appeal as a mechanism for moving beyond discussions of black letter law and legal practice. Arbitration, after all, is fundamentally an activity undertaken by human actors, and unlike in litigation those actors have been largely freed from pre-ordained rules, allowing personal beliefs and preferences to play the core role in the creation of the dispute resolution process.
This chapter is intended to lay out a programme for a more "contextual" approach to the application of psychology to arbitration than has been adopted within arbitration scholarship thus far. It will not attempt to deliver an exhaustive overview of the ways that psychology can be or has been applied to arbitration, but will instead attempt to demonstrate the fruitfulness of studying behaviour "in context". In so doing it will rely in particular on work in the area of Contextual Behavioural Science (CBS), which focuses on the "act in context", treating behaviour as inseparable from the circumstances (historical and situational) that surround it. Such a context-sensitive approach allows new light to be shed on the psychology of arbitration, while also unifying the existing literature within a new epistemic framework that offers the advantage of not only predicting but also of potentially influencing behaviour of interest in arbitration.
While psychology can be applied to arbitration in many ways, this chapter will focus on arbitrator reasoning. Section 2 presents contextualism as an alternative to mechanistic accounts of psychological phenomena. Section 3 addresses the professional context of arbitration, scrutinizing how individual conceptions of the role of the arbitrator can influence reasoning. Section 4 deals with the social context of arbitration, analysing the relations between the hierarchical character of the arbitration community and the existence of cognitive biases. Finally, Section 5 concludes.
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