IDEAS home Printed from https://ideas.repec.org/a/eee/irlaec/v66y2021ics0144818821000041.html
   My bibliography  Save this article

Are arbitrators biased in ICSID arbitration? A dynamic perspective

Author

Listed:
  • Rao, Weijia

Abstract

Concerns over arbitrator impartiality and independence in ICSID arbitration have led to reform proposals geared towards a multilateral investment court. Due to the ad hoc nature of appointments, it has been suggested that arbitrators may strategically render decisions in biased ways with the goal of encouraging reappointments. Although criticism against arbitrator bias has attracted significant attention, so far limited empirical evidence has been provided to support such concerns. This paper introduces a dynamic perspective to examine concerns of bias arising from ad hoc appointment. I find that contrary to conventional views held by critics of investor-state arbitration, on average, arbitrators tend to decide against their reputation from prior decisions in ICSID arbitration, which implies an effort to establish a reputation for being neutral and unbiased. This finding challenges one of the premises of proposals to replace arbitration with an investment court.

Suggested Citation

  • Rao, Weijia, 2021. "Are arbitrators biased in ICSID arbitration? A dynamic perspective," International Review of Law and Economics, Elsevier, vol. 66(C).
    • Handle: RePEc:eee:irlaec:v:66:y:2021:i:c:s0144818821000041
    DOI: 10.1016/j.irle.2021.105980
    as

    Download full text from publisher

    File URL: http://www.sciencedirect.com/science/article/pii/S0144818821000041
    Download Restriction: Full text for ScienceDirect subscribers only
    File URL: https://libkey.io/10.1016/j.irle.2021.105980?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to search for a different version of it.

    References listed on IDEAS

    as
    1. Edward Stringham & Todd Zywicki, 2011. "Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England," Public Choice, Springer, vol. 147(3), pages 497-524, June.
    2. Alon Klement & Zvika Neeman, 2013. "Does Information about Arbitrators' Win/Loss Ratios Improve Their Accuracy?," The Journal of Legal Studies, University of Chicago Press, vol. 42(2), pages 369-397.
    3. van Harten, Gus, 2007. "Investment Treaty Arbitration and Public Law," OUP Catalogue, Oxford University Press, number 9780199217892.
    4. Julian Donaubauer & Eric Neumayer & Peter Nunnenkamp, 2018. "Winning or losing in investor‐to‐state dispute resolution: The role of arbitrator bias and experience," Review of International Economics, Wiley Blackwell, vol. 26(4), pages 892-916, September.
    5. Alma Cohen & Alon Klement & Zvika Neeman, 2015. "Judicial Decision Making: A Dynamic Reputation Approach," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 133-159.
    Full references (including those not matched with items on IDEAS)

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Gershoni, Naomi, 2021. "Individual vs. group decision-making: Evidence from a natural experiment in arbitration proceedings," Journal of Public Economics, Elsevier, vol. 201(C).
    2. Jordan Brennan, 2013. "The Power Underpinnings, and Some Distributional Consequences, of Trade and Investment Liberalisation in Canada," New Political Economy, Taylor & Francis Journals, vol. 18(5), pages 715-747, October.
    3. Robert Basedow, 2021. "The EU's International Investment Policy ten years on: the Policy‐Making Implications of Unintended Competence Transfers," Journal of Common Market Studies, Wiley Blackwell, vol. 59(3), pages 643-660, May.
    4. Andrew T. Young, 2021. "The political economy of feudalism in medieval Europe," Constitutional Political Economy, Springer, vol. 32(1), pages 127-143, March.
    5. Gregory DeAngelo & Bryan C. McCannon, 2019. "Political competition in judge and prosecutor elections," European Journal of Law and Economics, Springer, vol. 48(2), pages 167-193, October.
    6. Mark Koyama, 2014. "The law & economics of private prosecutions in industrial revolution England," Public Choice, Springer, vol. 159(1), pages 277-298, April.
    7. Bertrand Crettez & Bruno Deffains & Olivier Musy, 2013. "On the dynamics of legal convergence," Public Choice, Springer, vol. 156(1), pages 345-356, July.
    8. Scott E. Masten & Jens Prüfer, 2014. "On the Evolution of Collective Enforcement Institutions: Communities and Courts," The Journal of Legal Studies, University of Chicago Press, vol. 43(2), pages 359-400.
    9. Malin Arve & Claudine Desrieux, 2023. "Committee Preferences and Information Acquisition," Journal of Industry, Competition and Trade, Springer, vol. 23(3), pages 243-260, December.
    10. Axel Berger & Wan‐Hsin Liu, 2021. "Can the G20 serve as a launchpad for a multilateral investment agreement?," The World Economy, Wiley Blackwell, vol. 44(8), pages 2284-2302, August.
    11. Chaisse Julien & Pomfret Richard, 2019. "The RCEP and the Changing Landscape of World Trade : Assessing Asia-Pacific Investment Regionalism Next Stage," The Law and Development Review, De Gruyter, vol. 12(1), pages 159-190, January.
    12. Kuzhatov, Bagdat G., 2022. "The Energy Charter Treaty reform: Why and how to reach a consensus on fair and equitable treatment?," Energy Policy, Elsevier, vol. 163(C).
    13. Chen, Daniel L. & Michaeli, Moti & Spiro, Daniel, 2020. "Legitimizing Policy," IAST Working Papers 20-107, Institute for Advanced Study in Toulouse (IAST).
    14. Bryan C. McCannon & Joylynn Pruitt, 2018. "Taking on the boss: Informative contests in prosecutor elections," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 20(5), pages 657-671, October.
    15. Lauge N. Skovgaard Poulsen & Emma Aisbett, 2011. "When the Claim Hits: Bilateral Investment Treaties and Bounded Rational Learning," Crawford School Research Papers 1105, Crawford School of Public Policy, The Australian National University.
    16. Brada, Josef C. & Chen, Chunda & Jia, Jingyi & Kutan, Ali M. & Perez, M. Fabricio, 2022. "Value creation and value destruction in investor-state dispute arbitration," Journal of Multinational Financial Management, Elsevier, vol. 63(C).
    17. Alma Cohen & Alon Klement & Zvika Neeman, 2015. "Judicial Decision Making: A Dynamic Reputation Approach," The Journal of Legal Studies, University of Chicago Press, vol. 44(S1), pages 133-159.
    18. Basedow, Robert, 2020. "The EU's international investment policy ten years on: the policy-making implications of unintended competence transfers," LSE Research Online Documents on Economics 105161, London School of Economics and Political Science, LSE Library.
    19. Ascensión Andina Díaz & José A. García-Martínez, 2016. "A careerist judge with two concerns," Working Papers 2016-02, Universidad de Málaga, Department of Economic Theory, Málaga Economic Theory Research Center.
    20. Bart-Jaap Verbeek, 2022. "Embedded Neoliberalism and the Legitimacy of the Post-Lisbon European Union Investment Policy," Politics and Governance, Cogitatio Press, vol. 10(3), pages 110-120.

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:eee:irlaec:v:66:y:2021:i:c:s0144818821000041. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Catherine Liu (email available below). General contact details of provider: http://www.elsevier.com/locate/irle .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.