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Article
Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration
Comparative Research in Law & Political Economy
  • Gus Van Harten, Osgoode Hall Law School of York University
Research Paper Number
41/2012

This research paper has been published in the Osgoode Hall Law Journal located in the Journals section of the Osgoode Digital Commons and available here.

Document Type
Article
Publication Date
2012
Keywords
  • Arbitration,
  • Investment,
  • International,
  • Arbitrator Behaviour,
  • Systemic Bias
Abstract

The study examines arbitrator behaviour in the uniquely context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the observed trends to rationales for systemic bias. The key finding is that the observed trends exist and that they are unlikely to be explained by chance. This gives tentative empirical evidence of cause for concern about the use of arbitration in this context.

Citation Information
Gus Van Harten. "Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration" (2012)
Available at: http://works.bepress.com/gus_vanharten/123/