The Devil's Arbitrator
59 Pages Posted: 17 Feb 2021
Date Written: February 5, 2021
In recent years, the age-old practice of parties appointing "their own" arbitrators to tribunals has come under attack by those who claim that party-appointed arbitrators inject bias into a tribunal that is supposed to be impartial.
Various empirical studies seem to have confirmed the uncomfortable contradiction between the rhetoric of impartiality and the purportedly biased conduct of party-appointed arbitrators. These empirical claims, however, only seem shocking if we ignore Legal Realism’s insight that some forms of bias or extra-legal factors are inevitable in legal decisionmaking as an inescapable consequence of law’s inherent indeterminacy.
If some forms of bias are inevitable, the key inquiry is not whether bias exists, but more nuanced questions: Which forms of bias are legitimate? Who decides which forms of bias are legitimate? And, How do we police the boundary between legitimate and illegitimate forms of bias?
This Article answers those questions with respect to party-appointed arbitrators.
It begins by reconceptualizing their inter-relational role in light of Irving Janis’ theory of Groupthink and his proposed solution, the Devil’s Advocate. In this reconceptualized role, party-appointed arbitrators serve a legitimate function by ensuring representativeness, providing a check against tribunal decisional shortcuts, and counterbalancing the opposing party-appointed arbitrator.
This role portends specific impartiality obligations that are both more conceptually coherent and more consistent with demonstrated expectations and existing practices.
Keywords: international arbitration, arbitrators, legal realism, groupthink, devil's advocate, investment arbitration, impartiality, professional ethics
JEL Classification: K33, K41, K40, K20, F53, F23, F14, F02, F21
Suggested Citation: Suggested Citation