25 Pages Posted: 28 Feb 2006
With the advent of the global economy, arbitration has become the preferred mechanism for resolving international disputes. Today international arbitrators resolve billions of dollars worth of disputes. Arbitration has historically been extolled as a confidential, quick and cost-efficient method for resolving disputes, which creates an internationally enforceable award. Those virtues, however, have eroded with the expansion in the number of parties using arbitration, the increasingly adjudicative nature of the process and the shift in the group serving as arbitrators, which has grown beyond the "grand old men" to a younger generation of arbitration technocrats. Instead, arbitration may now take just as long and be just as costly as litigation before national courts and confidentiality is being eroded. Given these shifts in arbitration's paradigm, a remaining central virtue of arbitration is it's neutrality in the sense of not providing an undue "home court" advantage and the neutrality of the adjudicative process. This article explores the later aspect of neutrality and considers the appropriate role of arbitrators in the context of international arbitration. This article suggests that subject to the parties' clear agreement to opt for commercial determinations or partisan decision-making, international arbitrators must provide independent, adjudicative services in order to both honor the parties' expectations and contribute to the legitimacy of international arbitration. The article first considers the expectations of the parties and describes how these contribute to a conception of the proper role of international arbitrators. It then describes the adjudicatory functions of international arbitrators and discusses the importance of impartiality. Next it considers potential mechanisms for regulating arbitrator conduct. Finally, it speculates on the future opportunities to promote the integrity of arbitrations and enhance the legitimacy of international arbitration.
Keywords: international arbitration, arbitrators, confidentiality, duty, contract, tort, expert determination, neutrality, independence, impartiality, dispute resolution
JEL Classification: J52, K12, K13, K20, K33, K40, F30
Suggested Citation: Suggested Citation
Franck, Susan D., The Role of International Arbitrators. ILSA Journal of International & Comparative Law, 2006. Available at SSRN: https://ssrn.com/abstract=885381