research paper on international commercial arbitration

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27 Empirical Findings on International Arbitration: An overview

Christopher R. Drahozal, John M. Rounds Professor of Law, University of Kansas

• Published: 08 October 2020
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This chapter surveys the existing empirical literature on international arbitration. It focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. The chapter first describes empirical research on the use of arbitration to resolve transnational disputes—in particular, the extent to which parties use arbitration clauses in international contracts, why they do so, and the frequency of international commercial and investment arbitration proceedings. Empirical studies have also examined an array of topics about the procedures in international arbitration. The empirical evidence typically comes from surveys or observational studies of commercial and investment arbitration proceedings. The chapter then considers empirical insights on selected topics such as the cost and length of arbitration proceedings, the size of arbitral tribunals, interim measures, multi-party disputes, challenges to arbitrators, the role of tribunal secretaries, and the use of mediation. It also looks at empirical studies on the applicable law in international commercial arbitration; the demographics of international arbitrators; and compliance with and enforcement of international arbitration awards.

Research on international arbitration, like research on international law more generally, has taken an ‘empirical turn’. 1 As recently as 2005, almost all of the published quantitative studies on international arbitration could be reprinted in one, relatively thin volume. 2 But today, not only are arbitration institutions themselves releasing more data about their caseloads, 3 but scholars and commentators are increasingly incorporating empirical analyses into their research. 4

The best-known empirical study of international arbitration is a qualitative study rather than a quantitative one, Dealing in Virtue by Yves Dezalay and Bryant Garth. 5 Surveys are a commonly used quantitative methodology, with periodic surveys by the School of International Arbitration at Queen Mary (and others) being the most prominent 6 (although the College of Commercial Arbitrators/Straus Institute for Dispute Resolution Survey on Arbitration Practice 7 and the Survey on the Law and Practice of Arbitration in the European Union by the Brunel Centre for the Study of Arbitration and Cross-Border Investment 8 are also worthy of note). But empirical studies on international arbitration employ a wide array of other methodologies as well, such as observational studies, citation analyses, and simulations and experiments.

This chapter surveys the existing empirical literature on international arbitration as of 2016. It seeks to be thorough but does not claim to be comprehensive. It focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and of international investment arbitration. Section 27.1 describes empirical research on the use of arbitration to resolve transnational disputes—in particular, the extent to which parties use arbitration clauses in international contracts, why they do so, and the frequency of international commercial and investment arbitration proceedings. Section 27.2 examines arbitral procedures, and section 27.3 considers the applicable law in international commercial arbitration. Section 27.4 looks at the demographics of international arbitrators, with emphasis on their diversity (or lack thereof), and arbitrator decision-making, in particular potential biases of party-appointed arbitrators, whether arbitrators make compromise awards, and the psychological aspects of arbitrator decision-making. Section 27.5 looks at the controversy over studies of outcomes in investment arbitrations. Finally, section 27.6 examines empirical studies of compliance with and enforcement of international arbitration awards, while section 27.7 considers their precedential effect, if any.

As with all empirical studies, particularly those involving dispute resolution, the empirical studies surveyed here are subject to important limitations. First, the sample studied—of survey respondents, contracts, arbitration proceedings, or court cases—must be representative of the population as a whole. If not, one cannot extrapolate from the results of the study to draw inferences about the entire population. Second, studies of dispute resolution processes—including both litigation and arbitration—face serious potential issues of selection bias. Parties choose whether to litigate or arbitrate, 9 and settle cases non-randomly, 10 which can bias the observed outcomes. Third, important data—in particular, data on the strength or weakness of the merits of the case—are missing from studies of outcomes of arbitration proceedings, which makes it difficult to evaluate whether the claimant’s win rate is too high or too low. 11 At a minimum, however, the empirical studies discussed in this chapter provide a picture of international arbitration—both commercial and investment—that is more systematic than the one gleaned from war stories and anecdotal case reports.

27. 1 The use of arbitration to resolve transnational disputes

This section discusses empirical studies addressing the use of arbitration to resolve transnational disputes, including (1) how often arbitration clauses are used in international contracts; (2) why parties agree to arbitrate; and (3) the frequency of international arbitration proceedings.

27.1.1 Use of arbitration clauses in international contracts

Commentators often describe arbitration as the ‘predominant’ (or even the ‘only’) method of resolving transnational disputes. 12 Survey data support such an assertion. For example, the 2015 Queen Mary/White & Case survey reported that ‘90% of respondents said that international arbitration is their preferred dispute resolution mechanism, either as a stand-alone method (56%) or together with other ADR (34%)’. 13

Data on the use of arbitration clauses in international contracts, however, provides a more nuanced picture. In a sample of contracts with at least one non-US party, filed with the US Securities and Exchange Commission (SEC) in 2002, Theodore Eisenberg and Geoffrey P. Miller found a ‘surprisingly … low absolute rate of arbitration clauses: only about 20% of international contracts contain them.’ 14 Table 27.1 provides a breakdown of the types of contracts in their sample, and the use of arbitration clauses in each type of contract. While 63.6 per cent of international licensing agreements included arbitration clauses, for example, only 18.6 per cent of international merger agreements, 18.2 per cent of international securities purchase agreements, and 5.0 per cent of international credit commitments did so.

The Eisenberg and Miller findings suggest that arbitration is not the ‘predominant’ method of dispute resolution for certain types of international contracts. But some commentators have taken the findings too far to the other extreme, concluding that ‘[i]n practice, arbitration does not seem to compete strongly with well-functioning public courts’, 15 and that, ‘given their choice, most businesses that negotiate contracts would prefer a judicial dispute resolution system over arbitration’. 16 Both of those assertions ignore important limitations of the Eisenberg and Miller findings.

First, the findings are limited to contracts with at least one party subject to the US securities laws—and hence with an obligation to make disclosures required by those laws. As a result, the Eisenberg and Miller findings provide little information about the use of arbitration clauses in other parts of the world.

Second, the findings are limited to ‘material contracts’, the only contracts required to be disclosed by SEC rules. The SEC defines a material contract as one ‘not made in the ordinary course of business which is material to the registrant’. 17 As the regulation explains: ‘If the contract is such as ordinarily accompanies the kind of business conducted by the registrant and its subsidiaries, it will be deemed to have been made in the ordinary course of business and need not be filed unless it falls within [a specified exception].’ 18 This limitation to material contracts results in the sample including contracts that are particularly unlikely to have arbitration clauses (such as merger agreements and credit commitments) and excluding contracts that are particularly likely to have arbitration clauses (such as construction, sale of goods, and joint venture agreements). 19

So while the Eisenberg and Miller findings warn against overstating the use of arbitration clauses in transnational contracts, the limitations on those findings counsel against going too far to the other extreme as well. As Gary Born concludes: ‘It is probably true that, in negotiated commercial (not financial) transactions, where parties devote attention to the issue of dispute resolution, and where the parties possess comparable bargaining power, arbitration clauses are more likely than not to be encountered … [B]ut more ambitious statistical claims are unproven.’ 20

27.1.2 Why parties agree to arbitrate

The survey data present a fairly consistent picture of why parties agree to arbitrate transnational disputes. The 2015 Queen Mary/White & Case survey identified the ‘enforceability of awards’ (65 per cent of respondents) and ‘avoiding specific legal systems/national courts’ (64 per cent) as the ‘most valuable characteristics of international arbitration’. 21 ‘Flexibility’ and ‘selection of arbitrators’ (both 38 per cent) were chosen less frequently. By comparison, the least desirable characteristics of arbitration were its ‘cost’ (68 per cent of respondents), the ‘lack of effective sanctions during the arbitral process’ (46 per cent), ‘lack of insight into arbitrators’ efficiency’ (39 per cent), and arbitration’s ‘lack of speed’ (36 per cent). 22 An older survey by Christian Bühring-Uhle had similar findings. 23

But data on the use of arbitration clauses (like the Eisenberg and Miller data discussed in the previous subsection) suggest that party preferences for arbitration may vary systematically by type of contract. Examining characteristics of contracts that commonly do not use arbitration clauses may help explain why parties to those contracts preferred litigation to arbitration. For example, relatively few international merger agreements (18.6 per cent) in the Eisenberg and Miller data included arbitration clauses, which is consistent with the view that parties tend to prefer litigation for bet-the-company cases that may require emergency relief (like those involving corporate mergers). 24

Similarly, only 5.0 per cent of international credit commitment agreements studied by Eisenberg and Miller used arbitration clauses, presumably because the law applicable to disputes under those agreements tends to be clear and because special foreclosure procedures are available in court. 25 Finally, Erin O’Hara O’Connor and Christopher R. Drahozal found that arbitration clauses commonly carved out (i.e. excluded from their scope) disputes involving preliminary relief or other matters important to protecting intellectual property rights, suggesting that parties may prefer courts to arbitration for protecting rights to innovation (with some evidence suggesting that the preference may be contingent ‘on the quality of the court system’). 26

27.1.3 Frequency of international arbitration proceedings

The number of international arbitration cases filed each year continues to grow, as shown in Table 27.2 . Most of the institutions listed show some growth between 2012 and 2015, although most of the growth in the total caseload is due to an increase in cases administered by CIETAC. Figure 27.1 illustrates the change over a longer period of time, albeit using a smaller subset of institutions. The total number of cases filed with the six institutions included in Figure 27.1 increased from just over 1,000 in 1993 to over 4,500 in 2015.

New Case Filings with Selected Arbitration Institutions, by Year.

The data on the number of arbitration filings are both incomplete and over-inclusive, however. They are incomplete because they do not include all types of international arbitrations, 27 all arbitration institutions, 28 or ad hoc (non-administered) arbitrations. 29 They are over-inclusive because some of the arbitrations included in Figure 27.1 are domestic. 30

Moreover, evaluating whether the absolute number of international arbitrations shown is large or small requires some sort of baseline for comparison. The number of international arbitrations filed each year is larger than the number of cases filed in U.S. federal court on the basis of alienage jurisdiction—i.e. cases between a citizen of a US state and a citizen of another country—which is ‘an indicator of minimum transnational litigation rates in the United States’. 31 But it is relatively small compared to the number of contracts cases filed in US federal court (roughly 25,000), 32 much less as compared to the millions of contracts cases filed in US state courts each year. 33 That said, the amount at stake in international arbitrations is much larger on average than the amount at stake in state court contract cases 34 (and likely federal court contract cases as well). Indeed, the average amount at stake in the ICC arbitrations filed in 2015 was $84 million, and the total amount at stake in pending ICC arbitrations was $286 billion. 35

The growth in investment arbitration cases has been even more pronounced, given the small starting point. Figure 27.2 shows the number of publicly known investment arbitrations filed from 1990 through to 2015, including both investment arbitrations subject to the ICSID Convention (the black portion of the bar) and investment arbitrations not subject to the ICSID Convention (the shaded portion of the bar). Only two known investment arbitration were filed in 1992, while in 2015 at least 72 investment arbitrations were filed. Again, however, the data is incomplete: investment arbitrations not subject to the ICSID Convention may not become publicly known for years after filing, if ever. 36 Moreover, the number of investment arbitrations filed per year is small, by pretty much any baseline (at most just over 70 cases), although the amount at stake in such cases can be quite large.

New Investment Arbitration Filings, by Year.

27.2 Arbitral procedures

Empirical studies have examined an array of topics about the procedures in international arbitration. The empirical evidence typically is from surveys or observational studies of commercial and investment arbitration proceedings. 37 This section describes empirical insights on selected topics such as the cost and length of arbitration proceedings, the size of arbitral tribunals, interim measures (including emergency arbitrators), multi-party disputes, challenges to arbitrators, the role of tribunal secretaries, and the use of mediation. 38

In addition to providing information about what goes on in international arbitration proceedings, these studies at times also touch on broader themes. First, the data help in evaluating whether international arbitration is becoming more ‘judicialized’—i.e. more like court litigation. 39 Second, the data may also be relevant to the extent to which jurisdictions compete to attract arbitration business, and to the effects of that competition. 40 For example, the number of ICC arbitration proceedings held in a country increased following the country’s adoption of a revised international arbitration statute, as did the number of arbitrators selected from that country in ICC arbitrations. 41

27.2.1 Cost of arbitration proceedings

Based on a sample of 221 ICC awards from 2012, the ICC has reported that ‘[p]arty costs (including lawyers’ fees and expenses, expenses related to witness and expert evidence, and other costs incurred by the parties for the arbitration) make up the bulk (83 per cent on average) of the overall costs of the proceedings’, while ‘[a]rbitrators’ fees [15 per cent] and case administration [2 per cent] account for a much smaller proportion of the overall costs’. 42 Attorneys’ fees and the like appear to make up a higher percentage of investment arbitration costs, with one study finding average claimant costs of $4,437,000, average respondent costs of $4,559,000, and average tribunal costs of $746,000 (or 7.7 per cent of the total). 43

27.2.2 Length of arbitration proceedings

Not surprisingly, on average investment arbitration proceedings take much longer (to final award) than commercial arbitration proceedings. Jeffrey Commission reports that on average an ICSID arbitration takes 1,381 days between filing and award (with the award being issued on average 379 days after the last hearing day), and that on average an investment arbitration under the UNCITRAL Arbitration Rules takes 1,446 days (with the award also being issued on average 379 days after the last hearing day). 44 By comparison, the LCIA reports an average of 20 months (608 days) from filing to award, while the Singapore International Arbitration Centre reports an average of 13.8 months (420 days). 45

27.2.3 Size of arbitral tribunals

Roughly half of all international commercial arbitrations involve a sole arbitrator, and the rest involve a three-arbitrator tribunal, with the proportion varying depending on the amount at stake and the institution. As shown in Figure 27.3 , in ICC arbitrations, the percentage is closer to 40 per cent of arbitrations with sole arbitrators.

Percent of ICC Cases with Sole Arbitrators, by Year.

27.2.4 Multi-party proceedings

A sizeable proportion of international arbitration cases involve multiple parties. For example, 34 per cent of ICC arbitrations filed in 2015 involved multiple parties, up from 20 per cent in the 1990s (although the percentage has not changed much for the past decade or so). 46

27.2.5 Interim measures and emergency arbitrators

Arbitrators have the authority to order interim measures in support of the arbitration proceeding, although empirical data suggest that requests for such relief are relatively infrequent. According to the 2012 Queen Mary/White & Case survey, for example, ‘77% of respondents said they had experience with such requests [for interim measures] in only one-quarter or less of their arbitrations.’ 47 The use of emergency arbitrators to rule on requests for interim measures has increased in recent years as the procedure has become more available, with the ICDR registering 67 requests for emergency arbitrators through June 2016, Singapore registering 50, and the ICC registering 34. 48 However, many parties still seem to prefer national courts. 49

27.2.6 Challenges to arbitrators

Some commentators have expressed concern that adoption of the IBA Guidelines on Conflicts of Interest in International Arbitration has led to an increase in arbitrator challenges. 50 Catherine Rogers offers—and finds mixed empirical support for—an alternative hypothesis: ‘of a peak of challenge activity at the time of enactment followed by a reduction’ as uncertainty about application of the Guidelines gets resolved. 51

27.2.7 Tribunal secretaries

Several surveys have examined the use of secretaries by arbitral tribunals, generally finding that ‘[t]he duties of the secretaries are primarily of an administrative nature’ (e.g. 14 of 22 interviewed international arbitrators and practitioners (63.6 per cent)), although commonly the secretary may draft ‘non-substantive’ parts of the award (11 of 22 interviewees (50.0 per cent)) and, much less commonly, produce a first draft of the award (3 of 22 interviewees (13.6 per cent)). 52

27.2.8 Mediation

Empirical studies have found that (1) Chinese arbitrators are more willing to mediate in a case in which they are sitting as arbitrator than arbitrators generally; 53 and (2) arbitrators from a civil law background (and German arbitrators in particular) are more willing to employ various techniques to encourage settlement than arbitrators from a common law background (and US arbitrators in particular). 54

27.3 Applicable law in international commercial arbitration

In addition to addressing the means of dispute resolution (arbitration or litigation), international contracts often also specify the law applicable to resolving disputes. Between 80 and 90 per cent of contracts giving rise to ICC arbitrations, for example, specify the law to be applied in resolving disputes arising under the contract. 55 In 2015, ‘English law and the laws of the USA were the most frequent choices, between them accounting for a quarter of all contracts’, while the laws of other European countries (Switzerland, France, and Germany) were also commonly chosen. 56 Contracts choosing other arbitration institutions surely have different distributions of applicable law, depending at least in part on the nationalities of the parties to those contracts. 57

A frequently debated topic is the role of the lex mercatoria (or Law Merchant) in international commercial arbitration. The term lex mercatoria is ambiguous, potentially referring simply to usages of trade that supplement national law, at one end of the spectrum, or to ‘an autonomous legal order, created spontaneously by parties involved in international economic relations and existing independently of national legal orders’, at the other. 58 Certainly international arbitration rules and statutes provide for usages of trade to be used to resolve parties’ disputes in international commercial arbitration. 59 But some commentators assert that international arbitration will lead to the creation of an autonomous legal order, for better 60 or for worse. 61

But empirical studies to date provide little evidence that parties often want their disputes resolved using the lex mercatoria . A survey conducted in 1999 by Klaus Peter Berger and co-authors reported that ‘[a]bout one third [of respondents] indicated that they were aware of the use of transnational commercial law in international contract negotiations and choice of law clauses’, but provided no evidence on the relative frequency of its use. 62 Meanwhile, as shown in Table 27.3 , only a very small percentage of contracts giving rise to ICC arbitrations choose to have some sort of a-national or non-national rules of decision govern their dispute (most choose a particular national law, as noted above). And even those small numbers may overstate the extent to which parties select a-national rules in their contracts because the ICC includes as a-national law the Convention on Contracts for the International Sale of Goods, which is an international treaty rather than a‑national legal rules. 63

Felix Dasser similarly has stated that reviewing published arbitral awards from ‘more than 50 years yielded just about a dozen cases—or about one case every five years’ in which ‘the parties [to private contracts] chose a non-national standard … that may qualify as a lex mercatoria ’; and another ‘one pertinent decision every other year’ in which the arbitral tribunal relied on an a-national standard when the parties had not so specified in their contract. 64 And a study by Ralf Michaels reported some (but not extensive) use of the UNIDROIT Principles of International Commercial Contracts in international commercial arbitration, typically in connection with other laws, and that use of the Principles as a comprehensive alternative system of law ‘is rare and rarely successful’. 65

27.4 Arbitrator demographics and decision-making

An array of studies of international commercial and investment arbitration have looked at the arbitrators themselves. This section first discusses studies of the demographics of international arbitrators, especially their lack of diversity. It then examines studies of how arbitrators make decisions, with particular emphasis on party-appointed arbitrators, whether arbitrators make compromise awards, and psychological aspects of arbitrator decision-making. 66

27.4.1 Arbitrator demographics and diversity

Investment arbitrators are the more common subject of empirical research here, at least in part because of the greater availability of data. Commentators have used a number of methods of identifying leading investment arbitrators, with similar results. 67 Todd Tucker has described ‘eight ideal types of arbitrators’ of investment disputes (which might apply as well to arbitrators of commercial disputes), which he divides equally between chair (manager, socialite, dictator, and weak) and wing arbitrators (followers, neutrals, partisans, and turncoats). 68 Robert Kovacs and Alex Fawke found that ‘[t]he vast majority (88 per cent) [of ISDS arbitrators] have had careers which span some combination of commercial law firms, academia, government and the judiciary’. 69 Sergio Puig has mapped the network of arbitrator appointments in ICSID arbitration, concluding that (1) ‘the arbitrator network is dominated by a small, dense and interconnected group, where members at the core are unlikely to escape the observation of other members of the core, but may remain insulated from outside influence’; and (2) ‘the arbitrator network is dominated by arbitrators from Europe as well as Anglo-American professionals; however, Latin-American arbitrators trained in Europe, the UK and the US play a fundamental role in the social structure.’ 70

For commercial arbitrators, Yves Dezalay and Bryant Garth, in their book Dealing in Virtue , described how ‘technocrats’ came to replace ‘grand old men’ in international arbitration. 71 A 2012 survey by Thomas Schultz and Robert Kovacs highlighted the importance of managerial skills for arbitrators today, leading them to suggest the possibility of ‘a new generation of arbitrators as managers of dispute resolution processes’. 72 Arbitration institutions often publish data on the nationality of the arbitrators they appoint or confirm, 73 and at least one survey provides evidence of the importance of nationality to parties selecting arbitrators. 74

Numerous commentators have highlighted the limited diversity of international arbitrators—focusing mostly on the lack of gender diversity, but also on the lack of diversity as to racial and other minorities. 75 Empirical studies have highlighted the small percentage of women appointed as arbitrators in investment arbitrations 76 and commercial arbitration (roughly 6–7 per cent female). 77 Women and other minorities are under-represented in international arbitration relative to international courts, national courts, corporate boards, and law firm partnerships (20–25 per cent female or more). 78 Institutions (at least in recent years) have tended to do at least somewhat better at appointing diverse arbitrators than parties, but even so, most still have a long way to go. 79

27.4.2 Party-appointed arbitrators

As noted above, three-arbitrator tribunals are appointed in a substantial proportion of international arbitrations. 80 And the default way to appoint such a tribunal is for each party to appoint one arbitrator and then for the two party-appointed arbitrators together to appoint the chair. 81 Even though the party-appointed arbitrators are appointed unilaterally by one party, with no input by the other, in international arbitrations they nevertheless must meet the same standards of neutrality as the chair. 82

But there are several reasons why one might expect a party-appointed arbitrator to tend to vote differently from the chair. First, parties unilaterally appointing an arbitrator might pick an arbitrator they perceive likely to rule in their favour, what might be called ‘selection bias’. As Martin Hunter famously has said: ‘[W]hen I am representing a client in an arbitration, what I am really looking for in a party nominated arbitrator is someone with maximum predisposition towards my client, but with the minimum appearance of bias.’ 83 Second, the fact of party appointment might give the arbitrator an incentive to vote in favour of the appointing party—what might be called ‘incentive bias’. The arbitrator might want to repay the party for selecting him or her, or curry favour with the appointing party to increase the chances of appointment in a future case. 84

Commentators have suggested looking at dissenting opinions by arbitrators for evidence that party-appointed arbitrators tend to favour the party that appointed them. 85 Dissenting opinions are relatively rare in international arbitration (although the degree of rarity depends on the baseline for comparison used). 86 The ICC reported that 44 of the 263 (16.7 per cent) partial and final awards issued in 2015 included a dissenting opinion. 87 Albert Jan van den Berg found that roughly 22 per cent of a sample of 150 investment arbitration awards included a dissenting opinion. 88 By comparison, 62 per cent of US Supreme Court opinions include a dissent, while only 2.6 per cent of US court of appeals opinions (but 7.8 per cent of published court of appeals opinions) include a dissent. 89

If party-appointed arbitrators consistently vote to decide cases the same way as other arbitrators, one would expect dissents to be randomly distributed among arbitrators—e.g. a party-appointed arbitrator would be as likely to dissent to a ruling in favor of the appointing party as one against. But that is not the observed pattern. Of the 34 dissenting opinions in the sample of investment arbitration awards studied by van den Berg, ‘nearly all … were issued by the arbitrator appointed by the party that lost the case in whole or in part’. 90 According to van den Berg: ‘That nearly 100 percent of the dissents favor the party that appointed the dissenter raises concerns about neutrality.’ 91 That said, the fact that most international arbitration awards are unanimous means that in most cases one of the party-appointed arbitrators voted against the party that appointed him or her (although unanimous awards certainly might mask disagreement among arbitrators in making the award). 92

There is no way to tell whether the results reported by van den Berg are due to selection bias or incentive bias or both. 93 Sergio Puig and Anton Strezhnev sought to test for the presence of bias in a setting without selection bias. By using an experimental design, in which respondents were assigned as arbitrators rather than selected by parties, they eliminated the possibility of selection bias (the trade-off, of course, is concerns about whether their experimental results apply in the real world). Their experimental scenario required arbitrators to allocate costs in an investment arbitration proceeding in which the tribunal had ruled in favour of the claimant. In their sample of respondents, they found: ‘An arbitrator who is appointed by the loser has only a 36 per cent chance of assigning all of the costs to the losing party. This jumps to about 55 per cent when the arbitrator is appointed by the winner—an increase of roughly 19 percentage points.’ 94 Their results thus provide some evidence of bias other than selection bias in party-appointed arbitrators, at least in an experimental setting.

An alternative to party appointment is what is called ‘blinded’ or ‘screened’ appointment: a party continues to appoint its arbitrator unilaterally, but the arbitrators do not know which party appointed them (i.e. they are blinded to or screened from the identity of the appointing party). Such an appointment method, it is argued, reduces incentive bias or affiliation bias (although not selection bias) while preserving the benefits of party appointment. The domestic non-administered arbitration rules of the International Institute for Conflict Prevention & Resolution (CPR) have authorized screened appointments for a number of years, and in December 2014 CPR adopted such a procedure in its international rules as well. 95 No empirical data are yet available on how the CPR screened appointment process works in practice, however. 96

27.4.3 Compromise awards

A common criticism of arbitration, both in the United States and internationally, is that arbitrators make compromise awards—colloquially, that they ‘split the baby’. For example, a RAND Institute survey of US corporate counsel found that the respondents were ‘overwhelmingly of the belief that arbitrators tend to split or compromise the award rather than ruling strongly for one party’. 97 One asserted explanation is that arbitrators have ‘an incentive to render compromised judgments that do not badly offend either party’ to enhance their chances of being appointed again in a future dispute. 98

But studies have failed to find patterns of arbitration awards consistent with the view that arbitrators frequently make compromise awards. The leading study is by Stephanie Keer and Richard Naimark, who examined a sample of AAA international awards from 1995 through 2000. They reported that the claimants’ mean recovery as a percentage of the amount claimed was 50.5 per cent, and the median was 46.7 per cent, which seems to suggest widespread compromise awards. But the distribution of the awards was u-shaped, with 31 per cent awarding 0 per cent of the amount claimed and 35 per cent awarding 100 per cent of the amount claimed, suggesting that ‘arbitrators, as a rule, make decisive awards and do not “split the baby” ’. 99 Studies of investment arbitration awards 100 and JAMS arbitration awards, 101 as well as an updated study of AAA/ICDR awards, 102 have reached similar conclusions.

A limitation of studies of award outcomes is that outcomes are difficult to evaluate without knowing the strength of the underlying claims. Thus, an award of 10 per cent of the amount claimed would not appear to be a compromise award. But if the most the claimant realistically could expect to recover was 20 per cent of the amount claimed, then an award of 10 per cent (half that amount) might in fact be a compromise award. 103 Existing observational studies are unable to control for this possibility, so the most that can be said is that these findings are not consistent with arbitrators making compromise awards, not that they disprove it. 104

27.4.4 Psychological aspects of arbitrator decision-making

Commentators have shown increasing interest in the application of behavioural psychology (also known as behavioural law and economics), which identifies systematic, non-rational biases in human decision-making, to how arbitrators make decisions. 105 Reflecting this interest, a pair of recent studies have used an experimental methodology to test for an array of cognitive biases in arbitrator decision-making. 106 Both studies administered a series of hypothetical problems to arbitrators attending professional conferences: Susan Franck et al. reported results for a sample of 262 individuals who self-identified as having served as an international arbitrator (in either a commercial or investment case) and who attended the 2014 ICCA Congress, 107 while Rebecca Helm et al. studied a sample of 94 members of the College of Commercial Arbitrators (largely domestic US arbitrators) attending its annual conference in 2013. 108

To the extent the studies overlapped in what they were examining, they obtained similar results. Both studies examined the performance of the arbitrators on the Cognitive Reflection Test, a three-question test designed to measure the extent to which respondents rely on intuition (incorrectly) in making decisions. 109 The arbitrators tested by Franck et al. answered an average of 1.47 questions correctly, while those tested by Helm et al. answered an average of 1.51 questions correctly. 110 Both samples of arbitrators scored higher than Florida state court judges but similarly to North American lawyers and US administrative law judges. Similarly, both studies found some (albeit in the case of Franck et al. weak) evidence of a framing effect in which ‘arbitrators … place[d] greater emphasis on losses than gains—a phenomenon often referred to as loss aversion’. 111 In varying settings, arbitrators were more likely to rescind a contract when the buyer sought rescission (after having suffered an out-of-pocket loss) than when the seller sought rescission (after having suffered foregone gains).

As for other possible cognitive biases, Franck et al. found that arbitrators, like other decision-makers, are subject to an anchoring effect, in which providing information about large damages awarded in an irrelevant case tended to increase arbitrator damages awards in a different, unrelated case. Arbitrators performed better than judges and other decision-makers in looking to base rates using ‘rational, deductive thought’ in evaluating possible negligence rather than ‘intuitive, representative thinking’. 112 But arbitrators, like pretty much everyone, suffer from some degree of egocentrism, with 76.6–92 per cent of responding arbitrators stating they were better than the median arbitrator responding at assessing the credibility of witnesses, efficiently administering cases, and ‘making accurate and impartial decisions’. 113 Meanwhile, Helm et al. found that almost all arbitrators (92 per cent) committed the conjunction fallacy—failing to recognize that the likelihood of a single event can be no smaller (and likely is larger) than the likelihood of two conjoined events. 114 But arbitrators ‘were not frequently subject to confirmation bias in the traditional sense’—they tended to require more evidence than the minimum necessary to resolve a problem, but did not seek out only evidence that would confirm their prior view. 115

One limitation of both of these studies, of course, is that they were done in experimental settings rather than in the real world. A potentially important difference between arbitrators and judges is that arbitrators face competition in getting selected to serve, which may give them different incentives from judges in deciding cases—incentives that the experiments do not replicate. 116

27.5 Outcomes of investment arbitrations

The most hotly contested empirical issue in international arbitration in recent years has been whether the outcomes of investment arbitrations unduly favour investors at the expense of host countries. This section describes the findings and criticisms of those studies, which necessarily are based only on publicly available data on investment arbitrations.

In addition, and importantly, the studies also are subject to the limitations of studies of litigation outcomes more generally. First, many disputes are settled, 117 and selection bias due to non-random settlement makes outcome data difficult to interpret. Second, win rates and other data on outcomes cannot be evaluated in the abstract but must be understood in light of some baseline. 118 Often, commentators assume, implicitly at least, that a baseline win rate of 50 per cent (claimant wins half the time, respondent wins half the time) both shows a fair process and is the only win rate that shows a fair process. Neither assumption necessarily is correct.

The baseline win rate depends on the strength or weakness of the underlying case, which is not something that empirical researchers typically can observe. If the underlying case is very strong, a high win rate for claimants would be the expected result of a fair process. If the underlying case is very weak, a low win rate for claimants would be the expected result of a fair process. In the former case, a claimant win rate of 50 per cent could in fact show that the process is unfair to claimants, while in the latter case, a claimant win rate of 50 per cent could show that the process is unfair to respondents.

Selection bias from settlement complicates this analysis, but does not change the conclusion. While some models of settlement behaviour predict a 50 per cent claimant win rate, others predict a much higher or much lower claimant win rate, depending on various assumptions. 119 As a result, evaluating outcome data requires a stated and justified baseline expectation of what the win rate in a fair process should be. Mere departures from a 50 per cent win rate (in either direction) do not necessarily show that the process is unfair. Likewise, the finding of a 50 per cent win rate does not itself show that the process is fair. The most that can be said in such a case is that the empirical evidence does not show that the process is unfair (on the explicit or implicit assumption of a 50 per cent baseline win rate).

Subject to these limitations, then, what does the data show about outcomes in investment arbitrations? 120 Based on a dataset of publicly available awards as of 1 May 2016, Daniel Behn at al. found that states won in 175 cases (of 330, or 53.0 per cent), while investors won in 155 (of 330, or 47.0 per cent). 121 An additional 49 cases had been discontinued and 116 settled. Of the 175 wins by a state, the state won on jurisdiction in 81 cases and on the merits in 94. Prior studies found similar state and investor win rates, albeit with older or less complete data. 122 Assuming a 50 per cent win rate as the baseline, these empirical results do not show that investment arbitration produces unfair results to host states (but, again, they do not show that it is fair, either). 123

Behn et al. further broke down the 155 investor wins into 80 ‘full’ wins and 75 ‘partial’ wins, defining a full win as one in which ‘the investor is made whole by the outcome—even if there is not success on all claims or that the valuation of damages is less than what the claimant-investor asked for’. 124 Susan Frank and Lindsey Wylie found (from a more limited sample of awards) that ‘the mean amounts claimed were approximately US$660 million (US$100 million median), which reflects a nontrivial risk of loss of fiscal resources for both investors and states, particularly for small investors and developing states’, but that investors that were awarded damages ‘obtained a mean award of US$45.6 million (US$10.9 million median) and an average success rate of 35 per cent (29 per cent median)’. 125

Howard Mann has argued that investors ‘have actually won most of the time: 72 per cent of the decisions on jurisdiction, and 60 per cent of cases decided on the merits.’ 126 But the question most studies are examining is not whether investors win too many decisions but whether they win (i.e. are awarded damages on) too many claims. Because investors have to get past multiple hurdles (i.e. jurisdiction, merits, and damages) to recover on a claim, counting wins on each separate hurdle double (or triple) counts investor wins. Of course, cases in which investors win on jurisdiction and lose on the merits certainly may be relevant on policy grounds. Presumably legal fees and other costs are likely to be higher and the investor’s settlement leverage is likely to be greater in a case in which the tribunal has found it has jurisdiction. But that is not the central question in most of the studies of investment arbitration outcomes.

Gus Van Harten has attempted a ‘workaround’ to the inability of empirical studies to ‘control for the correct outcome’ 127 by coding the content of awards by investment arbitration tribunals as taking an ‘expansive’ or a ‘restrictive’ approach to jurisdictional and substantive issues. In part 1 of the study, he found that investment awards show a ‘strong tendency in favour of an expansive approach’ to arbitral jurisdiction, one that is particularly pronounced for investors from the US, UK, and France. 128 (These findings are consistent with other data finding that arbitrators tend to make decisions in favor of broader arbitral jurisdiction.) 129 In part 2 of the study, examining arbitrator rulings on substantive issues, Van Harten reported ‘a strong tendency toward resolutions that enhanced the compensatory promise of investment treaty arbitration for foreign investors and its financial risks for states’, with the exception of cases brought against the United States, which Van Harten says benefited from restrictive rather than expansive interpretations. 130 Although Van Harten acknowledges that this evidence does not prove bias (because of possible alternative explanations for the findings), he states that ‘the observed variations in resolutions seem unlikely to be explained by some untested factors that may drive case outcomes, such as factual differences among cases’. 131 His findings, however, do not exclude the possibility that the expansive interpretations are the ‘correct legal outcome’. 132

An ongoing debate in the empirical literature is over the relationship between development status of state respondents and their likelihood of success in investment arbitrations. An early study by Susan Franck found that ‘irrespective of the definition of development status, there was no statistically significant relationship among the development status of the respondent, the development status of the presiding arbitrator, and outcome. This held true for both (1) winning or losing an investment treaty arbitration and (2) the amounts tribunals awarded’. 133 Gus Van Harten criticized the study for ‘equating OECD membership with developed status’ and thereby ‘includ[ing] in this category a number of countries that are reasonably classified as developing or transition rather than developed countries (e.g. Mexico, Turkey, and former East Bloc countries)’. 134 But Franck’s results were unchanged when she re-estimated the models in response to the criticism. 135 A subsequent study by Franck had similar results, concluding, ‘When controlling for democracy levels, none of the twenty-one models analyzed could identify a reliable link between outcome and respondent development status.’ 136

The most recent study is by Daniel Behn and colleagues. Using an expanded sample, they found ‘a strong and consistent correlation between development status and investment treaty arbitration outcomes’, even with ‘the identification of higher quality matching indicators to measure executive constraints, bureaucratic quality, judicial independence and corruption levels’. 137 According to the authors: ‘The statistical picture remains clear: states with higher levels of economic development are less likely to lose investment treaty arbitration cases; and the inverse applies to states with lower levels of economic development.’ 138 But, again, the study cannot exclude the possibility that the reason claims against states with lower levels of economic development are more likely to succeed is that the claims are stronger on the merits (and vice versa).

27.6 Enforcement of international arbitral awards

Claimants ordinarily are not satisfied with simply obtaining a favourable award. They also must collect on the award. Estimates are that 90% of ICC arbitration awards are complied with voluntarily, 139 but few empirical studies have examined the issue. In a recent survey by the Institute for Transnational Arbitration, ‘Forty-four percent of participants answered that “very few” (10 percent or less) of their commercial arbitration awards were subject to judicial enforcement, while 27 percent answered that “some” (10 to 40 percent) were.’ 140 By comparison, in a study published in 2005, Richard Naimark and Stephanie Keer followed up on AAA/ICDR arbitration awards to see what happened after the award was made. Their sample consisted of 153 arbitrations, of which the respondent won in 18 and lost in the other 135. Of the 135 losing respondents, 100 complied with the award at least in part (with 22 renegotiating the amount post-award), while 35 failed to comply.

In addition, ‘[t]he data also show that 67 of the awards were confirmed by a court and one was confirmed with some alteration of the terms of the award’, although only one court set aside an award. 141 Unfortunately, the Naimark and Keer sample was not a random one, so that their results cannot be generalized to AAA or international arbitrations more generally. More recently, Judith Gill and Matthew Hodgson surveyed parties that had been awarded costs in investment arbitrations, and found that 37% of successful respondents and 19% of successful claimants ‘were paid nothing at all’, while ‘[o]nly 40 per cent of claimants and 38 per cent of respondents paid costs awards against them voluntarily’. 142

More studies are available on court enforcement of international arbitration awards. Using a sample of court decisions reported in the ICCA Yearbook Commercial Arbitration, Albert Jan van den Berg has reported: ‘In approximately 10% of the reported cases involving the New York Convention, a court has refused enforcement of a foreign arbitral award. 143 Country-specific studies of award enforcement are set out in the following subsections. 144

27.6.1 United States

Christopher Whytock studied published US court opinions (from 1970 through 2008) and found that in ‘23.1 percent of decisions (19.3 percent in the U.S. District Courts, 33.3 percent in the U.S. Court of Appeals), the court decided that the award should not be enforced’. 145

27.6.2 China

Relying on a non-random sample of award enforcement cases in China from 1991 to 1999, Randall Peerenboom reported that courts enforced 52 per cent of foreign awards and 47% of CIETAC awards, and that ‘investors can expect to recover 75–50% of the award amount in 34% of the cases and half of the award at least 40% of the time’. 146

27.6.3 Switzerland

Felix Dasser has found that 6.5 per cent of the decisions of the Swiss Federal Supreme Court addressing the merits of a challenge to an international arbitral award resulted in the award being completely or partially set aside, and that, as of 2009, ‘the Federal Court typically takes just four months to dispose of a challenge against an arbitral award’. 147

27.6.4 Italy

Laura Barison reported that the Italian Courts of Appeals of Brescia, Genoa, Turin, and Milan set aside only four of 99 awards (or 4.0 per cent ) from the beginning of January 2007 to 30 June 2014. 148

27.6.5 Sweden

The Committee on the Review of Swedish Arbitration examined all challenges to arbitration awards in the Swedish Courts of Appeals (including both domestic and international arbitrations) from the beginning of 2004 to 31 May 2014, and found that the court annulled an arbitral award in ‘almost six percent of all challenges’ (including challenges withdrawn or otherwise dismissed by the court). 149

27.6.6 Australia

Diana Hu and Luke Nottage found an increase in actions for enforcement of foreign arbitral awards in Australia in recent years, but did not report data on the outcomes of the cases. 150

27.6.7 Conclusion

All of the studies of court enforcement have important limitations. First, and most obviously, they do not consider voluntary compliance with the award, either before an action is filed in court or after (i.e. through settlement). Second, to the extent the studies rely on published court opinions, they likely understate the extent of court enforcement. 151 In the United States, for example, not all court opinions are published, and published decisions are more likely to address controversial or unsettled issues. An opinion in a routine case enforcing an international arbitral award is less likely to be published than an opinion refusing to enforce an award. 152

27.7 International arbitral awards as precedent

Unlike court judgments in a common law system, arbitration awards do not serve as binding precedent. No standing appellate arbitral body exists to reverse awards that do not comply with existing law, and arbitral tribunals are not otherwise bound to follow a prior award, even if it is directly on point to an issue in the case. But that does not necessarily mean that no system of precedent exists in international arbitration. Even if awards do not have binding precedential effect on subsequent arbitral tribunals, they may have persuasive precedential effect, convincing subsequent tribunals that the approach taken by the prior tribunal was the correct or proper one.

One possible way to identify whether a prior arbitral award has influenced or persuaded a subsequent tribunal is to see if the subsequent tribunal cited it. 153 Of course, the fact that a tribunal cited a prior award does not necessarily mean that it was influenced by the award. To take an extreme case, the tribunal might have cited a prior award to explain why it thought the award was wrongly decided. That said, the extent to which international arbitral awards in the aggregate cite prior awards would provide some evidence of whether a system of (persuasive) precedent might be developing in international arbitration.

Because investment arbitration awards are more likely to be publicly available than commercial awards, most studies have focused on citation patterns in investment awards. 154 In his study of investment arbitration awards and decision from 1990 to 2006, Jeffrey Commission found that investment arbitration tribunals were increasingly citing prior ICSID awards, such that, in his view, ‘[t]he role that precedent has come to play in investment treaty arbitration today resembles the common law doctrine of stare decisis absent certain of the associated values advanced in a common law system of precedent’. 155 Citation practices seem to vary depending on the institutional setting of the arbitration. According to a study by Suha Jubran Ballan, ICSID merits awards (issued between 2001 and 2011) cited an average of 9.97 prior awards and NAFTA awards cited an average of 9.25 prior awards (mostly other NAFTA awards), while other investment arbitration awards subject to the New York Convention cited an average of only 5.29 prior awards. 156 In a study of citations by investment arbitration tribunals to Iran–US Claims Tribunal awards, Christopher S. Gibson and Christopher R. Drahozal found that, based on a subsample of NAFTA awards, ‘[i]n every case in which the ICSID tribunal cited an Iran-United States Claims Tribunal precedent in its decision or award, the parties previously cited that Tribunal precedent in one of their submissions’, highlighting the potential importance of party citation practices for studies of arbitral precedent. 157

Finally, in a less systematic but broader survey of citation practices in arbitral awards, Gabrielle Kaufmann-Kohler reported that (1) only six of 100 arbitral awards in a sample of cases applying the Convention on Contracts for the International Sale of Goods cited prior awards; (2) 15 per cent of ICC arbitral awards (out of a sample of 190 published awards) cited prior awards, ‘mostly … with regard to matters of jurisdiction and procedure’ rather than substantive law; (3) prior to 2003 only one-sixth of published decisions by the Court of Arbitration for Sports cited prior awards, while after 2003 ‘nearly every award contains one or more references to earlier CAS awards’; and (4) ‘Out of 110 [domain name arbitration] awards issued in the fall of 2006, 540 citations to prior domain name decisions were made in 85 cases.’ 158

Gregory Shaffer and Tom Ginsburg, ‘The Empirical Turn in International Legal Scholarship’, 106 Am. J. Int’l L. 1 (2012), 1.

Christopher Drahozal and Richard Naimark (eds), Towards a Science of International Arbitration: Collected Empirical Research (Kluwer Law International, 2005).

The ICC has provided aggregate data on various aspects of its caseload for years (see e.g. ICC, ‘2015 ICC Dispute Resolution Statistics’, 1 ICC Disp. Resol. Bull. (2016), 9), which have been used in a number of empirical studies. In addition to studies cited elsewhere in this chapter, see e.g. Gilles Cuniberti, ‘The International Market for Contracts: The Most Attractive Contract Laws’, 34 Nw. J. Int’l L. & Bus. 455 (2014); Stefan Voigt, ‘Are International Merchants Stupid? Their Choice of Law Sheds Doubt on the Legal Origin Theory’, 5 J. Emp. Legal Stud. 1 (2008). Other institutions are increasingly providing data (to varying degrees) on their caseloads as well. See e.g. American Arbitration Association/International Centre for Dispute Resolution, ‘B2B Dispute Resolution Impact Report: 2015 Key Statistics’: < http://info.adr.org/2015-key-statistics/ >; China International Economic and Trade Arbitration Commission, ‘Statistics’ (2016): < http://www.cietac.org/index.php?m=Page&a=index&id=40&l=en >; DIS (German Institution of Arbitration), ‘DIS Statistics 2015’: < http://www.dis-arb.de/upload/statistics/DIS-Statistiken%202015.pdf >; Hong Kong International Arbitration Centre, ‘2015 Case Statistics’: http://hkiac.org/about-us/statistics >; LCIA, ‘Registrar’s Report 2015’: < http://www.lcia.org//media/download.aspx?MediaId=500 >; Singapore International Arbitration Centre, ‘Statistics’ (2016): < http://www.siac.org.sg/2014-11-03-13-33-43/facts-figures/statistics >; Arbitration Institute of the Stockholm Chamber of Commerce, ‘SCC Statistics 2015’: < www.sccinstitute.com/statistics/ >; Swiss Chambers’ Arbitration Institution, ‘Commented Statistics 2015’: < https://www.swissarbitration.org/files/515/Statistics/Commented%20Statistics%202015%20final%2020160810.pdf >; Vienna International Arbitration Centre, ‘VIAC Statistics 2015’: < http://www.viac.eu/en/service/statistics/89-service/statistiken/293-viac-statistics-2015 >.

For a partial list, see PluriCourts, ‘Empirical Studies on Legitimacy in International Investment Law’ (2014): < https://www.jus.uio.no/pluricourts/english/topics/investment/documents/1-2014-bibliography-isds-empirical.pdf > (listing 60 empirical studies on investment arbitration and 25 empirical studies on international commercial arbitration).

Yves Dezalay and Bryant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1996).

See Queen Mary and Pinsent Masons, 2016 International Dispute Resolution Survey: Pre-empting and Resolving Technology, Media and Telecoms Disputes ; Queen Mary and White & Case, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration ; Queen Mary and PwC, 2013 International Arbitration Survey: Corporate Choices in International Arbitration: Industry Perspectives ; Queen Mary and White & Case, 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process ; Queen Mary and White & Case, 2010 International Arbitration Survey: Choices in International Arbitration ; Queen Mary and PwC, International Arbitration: Corporate Attitudes and Practices 2008 ; Queen Mary and PwC, International Arbitration: Corporate Attitudes and Practices 2006 . See also Loukas Mistelis and Crina Baltag, ‘Trends and Challenges in International Arbitration: Two Surveys of In-House Counsel of Major Corporations’, 2(5) World Arb. & Med. Rev. 83 (2008) (discussing 2006 and 2008 surveys); Stavros Brekoulakis, ‘Enforcement of Foreign Arbitral Awards: Observations on the Efficiency of the Current System and the Gradual Development of Alternative Means of Enforcement’, 19 Am. Rev. Int’l Arb. 415 (2008) (discussing 2008 survey); Loukas Mistelis, ‘International Arbitration: Corporate Attitudes and Practices. 12 Perceptions Tested: Myths, Data and Analysis Research Report’, 15 Am Rev. Int’l Arb. 525 (2004) (published in 2006 and discussing 2006 survey); Loukas Mistelis and Crina Baltag, ‘Recognition and Enforcement of Arbitral Awards and Settlement in International Arbitration: Corporate Attitudes and Practices’, 19 Am. Rev. Int’l Arb. 319 (2008) (discussing 2008 survey); Emilia Onyema, ‘Empirically Determined Factors in Appointing Arbitrators in International Commercial Arbitration’, 73 Arb. 199 (2007) (discussing 2006 survey).

See Thomas Stipanowich, ‘Reflections on the State and Future of Commercial Arbitration: Challenges, Opportunities, Proposals’, 25 Am. Rev. Int’l Arb. 297 (2014) (focusing principally on US domestic arbitration); Thomas Stipanowich and Zachary Ulrich, ‘Arbitration in Evolution: Current Practices and Perspectives of Experienced Commercial Arbitrators’, 25 Am. Rev. Int’l Arb. 395 (2014); ‘Commercial Arbitration and Settlement: Empirical Insights into the Roles Arbitrators Play’, 6 Yb. on Arb. & Med. 1 (2014).

See Tony Cole et al., Legal Instruments and Practice of Arbitration in the EU (European Parliament, 2014); ‘Arbitration in Southern Europe: Insights from a Large-Scale Empirical Study’, 26 Am. Rev. Int’l Arb. 187 (2015) (with subsequent articles to examine arbitration in Western Europe, Scandinavia and the Baltic States, and Eastern Europe). The survey data is available on Transnational Dispute Management, ‘Data: Survey on the Law & Practice of Arbitration in the European Union’ (2015): < http://www.transnational-dispute-management.com/news.asp?key=568 >.

See Stephen Ware, ‘The Effects of Gilmer: Empirical and Other Approaches to the Study of Employment Arbitration’, 16 Ohio St. J. on Disp. Resol. 735 (2001), 755–6: ‘Empirical studies can tell us the relative levels of awards and process costs in arbitration and litigation, but that does not mean they can tell us the relative levels of awards and process costs in arbitration and litigation in comparable cases . The probative value we give to empirical studies should turn on our level of confidence that the studied cases going to arbitration are comparable to the studied cases going to litigation. And, in reality, nobody knows whether the cases going to arbitration are comparable to the cases going to litigation.’

See George Priest and Benjamin Klein, ‘The Selection of Disputes for Litigation’, 13 J. Legal Stud. 1 (1984). Compare Daniel Klerman and Yoon-Ho Lee, ‘Inferences from Litigated Cases’, 43 J. Legal Stud. 209 (2014), 214 (‘suggest[ing] that plaintiff trial win rates can provide useful information about the law.’); Jonah Gelbach, ‘The Reduced Form of Litigation Models and the Plaintiff’s Win Rate’ (2016), SSRN, 3 (‘assuming Klerman & Lee’s conditions appears little different from simply assuming that selection effects are not problematic in the first place’).

See Sect. 27.5 .

See e.g. Sundaresh Menon, ‘The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions’, 108 Am. Soc’y Int’l L. Proc. 219 (2014), 234 (‘[A]rbitration is likely to remain the predominant method for the resolution of transnational commercial disputes’); W. Laurence Craig, ‘The Arbitrator’s Mission and the Application of Law in International Commercial Arbitration’, 21 Am. Rev. Int’l Arb. 243 (2010), 251 (‘Whatever the benefits on the domestic scene of comparing the merits of arbitration with those of litigation, the comparison is neither interesting nor realistic on the international scene where arbitration is not only the accepted but realistically the only method of dispute resolution … ’).

2015 Queen Mary/White & Case survey (n. 6 ), 5; 2013 Queen Mary/PwC survey (n. 6 ), 6 (52% of responding corporations favoured arbitration, while 28% favoured court litigation); Cole et al., Arbitration in the EU (n. 8 ), vol. 2, pt D, 2 (22.5% of respondents estimated that 76–100% of contracts with ‘foreign commercial entit[ies]’ included an arbitration clause).

See Theodore Eisenberg and Geoffrey Miller, ‘The Flight from Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in the Contracts of Publicly Held Companies’, 56 DePaul L. Rev. 335 (2007), 350–52; Ya-Wei Lit, ‘Dispute Resolution Clauses in International Contracts: An Empirical Study’, 39 Cornell Int’l L.J. 789 (2006), 799–800 (finding 14.6% of international merger agreements in SEC filings between 1 January 2002 and 31 March 2003 included an arbitration clause).

Jens Dammann and Henry Hansmann, ‘Globalizing Commercial Litigation’, 94 Cornell L. Rev. 1 (2008), 31.

William Woodward Jr, ‘Saving the Hague Choice of Court Convention’, 29 U. Pa. J. Int’l L. 657 (2008), 669.

17 C.F.R. §229.601(b)(10)(i). In addition, the SEC has long objected to the inclusion of arbitration clauses in public offering documents. See e.g. Karan Singh Tyagi, ‘Carlyle Leaves Out Mandatory Arbitration Clause in IPO’ (Kluwer Arbitration Blog, 2012): < http://kluwerarbitrationblog.com/2012/02/07/carlyle-leaves-out-mandatory-arbitration-clause-in-ipo/ >. To the extent the contracts in the Eisenberg and Miller sample were parts of public offerings, the SEC policy would provide another reason for the low use of arbitration clauses in those contracts.

17 C.F.R. §229.601(b)(10)(ii).

Christopher Drahozal and Stephen Ware, ‘Why Do Businesses Use (or Not Use) Arbitration Clauses?’ 25 Ohio St. J. on Disp. Resol. 433 (2010), 460–66.

See Gary Born, International Commercial Arbitration , 2nd edn (Kluwer Law International, 2014), 95.

2015 Queen Mary/White & Case survey (n. 6 ), 6 (respondents were asked ‘What are the three most valuable characteristics of international arbitration?’).

Ibid. 7 (respondents were asked, ‘What are the three worst characteristics of international arbitration?’).

See Christian Bühring-Uhle, Arbitration and Mediation in International Business (Kluwer Law International, 1996), 136; repr. in Drahozal and Naimark (n. 2 ), 25 (listing ‘most significant advantages’ of arbitration as the ‘neutrality of the forum’ and the ‘international enforcement of awards’). See also Richard Naimark and Stephanie Keer, ‘International Private Commercial Arbitration: Expectations and Perceptions of Attorneys and Business People. A Forced-Rank Analysis’, 30(5) Int’l Bus. Lawyer 203 (2002); repr. in Drahozal and Naimark (n. 2 ), 43 (parties listed ‘fair and just result’ as the most important issue in the resolution of a particular international arbitration before the AAA); Shahla Ali, ‘Approaching the Global Arbitration Table: Comparing the Advantages of Arbitration as Seen by Practitioners in East Asia and the West’, 28 Rev. Litig. 791 (2009), 833 (comparing advantages of international arbitration by region of practice; listing neutrality of forum and enforceability of awards as ‘areas of convergence’ across regions).

Drahozal and Ware (n. 20 ), 462.

Ibid. 460–62; 2013 Queen Mary/PwC survey (n. 6 ), 7 (82% of respondents in the financial services industry favoured court litigation over arbitration).

Erin O’Hara O’Connor and Christopher Drahozal, ‘The Essential Role of Courts for Supporting Innovation’, 92 Tex. L. Rev. 2177 (2014), 2189, 2210; Christopher Drahozal and Erin O’Hara O’Connor, ‘Unbundling Procedure: Carve-Outs from Arbitration Clauses’, 66 Fla. L. Rev. 1945 (2014), 1975–80.

Fig. 27.1 does not include maritime arbitration, for example, which is a frequently used but specialized form of arbitration. See Maritime London, ‘Why Choose the UK’s Maritime Services’ (2016): < http://www.maritimelondon.com/why-choose-uk-maritime-services > (‘2,966 maritime disputes were referred to arbitration in London in 2013’).

Compare e.g. Table 27.2 with Fig. 27.1 .

Richard Naimark, ‘Building a Fact-Based Global Database: The Countdown’, 20 J. Int’l Arb. 105 (2003), 106 (describing uncertainty over frequency of ad hoc arbitration proceedings); 2008 Queen Mary/PwC survey (n. 6 ), 15 (concluding based on survey responses that ‘86% of awards that were rendered over the last ten years were under the rules of an arbitration institution, while 14% were under ad hoc arbitrations’).

See Markus Altenkirch and Nicolas Gremminger, ‘Parties’ Preferences in International Arbitration: The Latest Statistics of the Leading Arbitral Institutions’, Global Arb. News (2015): < http://globalarbitrationnews.com/parties-preferences-in-international-arbitration-the-latest-statistics-of-the-leading-arbitral-institutions-20150805/ > (explaining that percentage of international cases in reported data ranges from 24% for DIS to 100% for the ICC and ICDR). But see 2015 ICC Dispute Resolution Statistics (n. 3 ), 12 (‘75% of the cases received [by the ICC] in 2015 involved parties from different countries … However, ICC also handles many cases involving parties from the same country (domestic cases).).

See Christopher Whytock, ‘The Arbitration–Litigation Relationship in Transnational Dispute Resolution: Empirical Results from the U.S. Federal Courts’, 2(5) World Arb. & Med. Rev. 39 (2008), 46, 51–52; Christopher Whytock, ‘The Evolving Forum Shopping System’, 96 Cornell L. Rev. 481 (2011), 515 (table 4) (finding roughly 2,000 alienage cases pending in US federal court per year from 2005 to 2008).

United States Courts, ‘Statistical Tables for the Federal Judiciary’ (2015), table C-2: < www.uscourts.gov/file/20032/download > (‘Contract Actions, Total’: 2015: 25,737).

Court Statistics Project, ‘Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads’ (2012), 10–11 (stating that contracts cases make up 61% of sample of state court filings, and listing total number of state court filings by state in 2010).

See e.g. National Center for State Courts, ‘The Landscape of Civil Litigation in State Courts’ (2015), 24 (reporting average judgment in sample of state court contracts cases of $9,428).

2015 ICC Dispute Resolution Statistics (n. 3 ), 17.

See Luke Peterson, ‘Why It’s Important to Read Between the Lines of UNCTAD’s Annual Review of Investor–State Dispute Settlement Cases’, IA Reporter (2014) (explaining that ‘claims initiated under the UNCITRAL, ICC, Stockholm or some other rules can be initiated without similar publicity, and may not become “known” to the public for months, years or perhaps ever’).

There is little recent empirical evidence on the provisions in international arbitration agreements dealing with arbitral procedures. For a good but dated study, see Stephen Bond, ‘How to Draft an Arbitration Clause (Revisited)’, 1(2) ICC Int’l Ct. Arb. Bull. 14 (1990); repr. in Drahozal and Naimark (n. 2 ), 65; Drahozal and Naimark (n. 2 ), 58 (‘Information on more recent clauses would be of interest’).

There remains limited empirical evidence on some topics, such as document production and witness testimony. Drahozal and Naimark (n. 2 ), 90–92 (suggesting possible research questions). For an exception, see 2012 Queen Mary/White & Case survey (n. 6 ), 20–31 (survey data on document production and fact and expert witnesses); Mathematica Policy Research, Inc, Recent Practice/Future Possibilities: A Survey of Practitioners in International Commercial Arbitration: Final Report (2005), 35: < https://www.mathematica-mpr.com/-/media/publications/pdfs/recentpractice.pdf > (survey respondents reported that proceedings over previous five years commonly involved ‘multiple arbitrators’ (80%) and ‘counsel from different traditions’ (72.5%); less commonly ‘interim measures granted’ (20%), ‘independent experts appointed’ (5%), ‘jurisdictional or arbitrator challenges’ (27.5%), ‘more than two parties’ (25%), ‘discovery/disclosure’ (35%)); Cole et al., Arbitration in the EU (n. 8 ), vol 2, pt 1 (responses to survey questions on arbitral procedure).

Christopher Drahozal, ‘Disenchanted? Business Satisfaction with International Arbitration’, 2(5) World Arb. & Med. Rev. 1 (2008), 3–9 (‘The available empirical evidence—both from the ICC and survey respondents—supports the perception that international arbitration is becoming more judicialized’); Rémy Gerbay, ‘Is the End Nigh Again? An Empirical Assessment of the “Judicialization” of International Arbitration’, 25 Am. Rev. Int’l Arb. 223 (2014), 226 (‘[E]mpirical evidence does not support the assumption that international arbitration has recently become more judicialized’).

See e.g. 2015 Queen Mary/White & Case survey (n. 6 ), 12–13 (listing most frequently used arbitral seats over the preceding five years and identifying ‘[r]eputation and recognition of the seat’ as reason why seats were selected most often); Sophie Pouget, ‘Arbitrating and Mediating Disputes: Benchmarking Arbitration and Mediation Regimes for Commercial Disputes Related to Foreign Direct Investment’, Working Paper 6632 (World Bank, 2013), 12 (rating countries based on restrictions on arbitrators and foreign attorneys and restrictions on arbitral procedures); Charles River Associates, ‘Arbitration in Toronto: An Economic Study’ (2012), 4 (‘From the survey, we estimate that approximately 425 arbitrations [both domestic and international] will occur in Toronto in 2012. On average, survey respondents reported that each arbitration is associated with total expenditures by the parties of approximately $600,000 leading to an estimated total direct expenditure of $256.3 million in 2012’).

Christopher Drahozal, ‘Regulatory Competition and the Location of International Arbitration Proceedings’, 24 Int’l Rev. L. & Econ. 371 (2004); repr. in Drahozal and Naimark (n. 2 ), 111; Christopher Drahozal, ‘Arbitrator Selection and Regulatory Competition in International Arbitration Law’, in Drahozal and Naimark (n. 2 ), 167.

ICC Commission on Arbitration & ADR, Task Force on Decisions as to Costs, ‘Decisions on Costs in International Arbitration’, 2 ICC Disp. Resol. Bull. 1 (2015), 3; Klaus Sachs, ‘Time and Money: Cost Control and Effective Case Management’, in Loukas Mistelis and Julian Lew (eds), Pervasive Problems in International Arbitration (Kluwer Law International, 2006), 112 (‘[A]ccording to a study undertaken by a well-known Swiss arbitrator, in ICC practice, the share of the tribunal’s cost of the total cost of the proceeding nowadays is in the range of 10%. What is particularly interesting in this study is that still 10 years ago such share was two times higher, i.e. 20% … .’); Celeste Quero, ‘Costs of Arbitration and Apportionment of Costs under the SCC Rules’, (SCC 2016), 6: < http://www.sccinstitute.com/media/93440/costs-of-arbitration_scc-report_2016.pdf > (‘Out of the total costs spent in an arbitration, a median percentage of 81% was paid for costs for legal representation, with the remaining 19% devoted to pay the costs of arbitration’). For data on arbitrator and administrative fees for particular tribunals, see LCIA, ‘LCIA Releases Costs and Duration Data’ (2015): < http://www.lcia.org/News/lcia-releases-costs-and-duration-data.aspx > (based on all LCIA arbitrations between 1 January 2013 and 15 June 2015 that resulted in a final award) (‘The mean costs of an LCIA arbitration is US$192,000. The median costs of an LCIA arbitration is US$99,000’); Singapore International Arbitration Centre, ‘SIAC Releases Costs and Duration Study’ (2016): < http://www.siac.org.sg/images/stories/press_release/SIAC%20Releases%20Costs%20and%20Duration%20Study_10%20Oct%202016.pdf > (based on sample of 98 SIAC cases from 1 April 2013 to 31 July 2016 in which a final award was issued) (mean cost for arbitrators’ fees and administrative fees for all tribunals of $80,337, with mean for sole arbitrator tribunal of $39,207 and for three-member tribunal of $154,371).

See Matthew Hodgson, ‘Counting the Costs of Investment Treaty Arbitration’, Global Arb. Rev. News (2014) (based on sample of publicly available investment arbitration awards as of 31 December 2012) (noting that ‘[t]he average tribunal costs in ICSID claims are 10 per cent lower than in an UNCITRAL claim’).

Jeffrey Commission, ‘How Long Is Too Long to Wait for an Award?’, Global Arb. Rev. News (2016); Suha Jubran Ballan, ‘Investment Treaty Arbitration and Institutional Backgrounds: An Empirical Study’, 34 Wis. Int’l L.J. 31 (2016), 71–2 (finding that the duration of ICSID proceedings ‘on average was 1643 days’, the ‘duration of NAFTA proceedings was on average 1566 days, while [New York Convention] arbitrations were significantly shorter, with an average of 1137 days’).

LCIA Cost & Duration Study (n. 42 ) (reporting mean duration for all tribunals of 20 months, for a sole arbitrator of 18.5 months, and for a 3-arbitrator tribunal of 21 months); SIAC Cost & Duration Study (n. 42 ) (mean duration for all tribunals of 13.8 months, with mean for sole arbitrator tribunal of 13.0 months and for 3-member tribunal of 15.3 months); see also Quero (n. 42 ), 8 (reporting mean duration of Stockholm Chamber cases to be 16.2 months, with sole arbitrator cases resolved on average in 10.9 months and cases with 3-arbitrator tribunals resolved on average in 19.0 months); Pouget (n. 44 ), 13 (estimating an ‘[a]verage length of arbitration proceedings by region’ based on hypothetical case, ranging from 36 weeks in Eastern Europe and Central Asia to 65 weeks in Sub Saharan Africa’).

2015 ICC Dispute Resolution Statistics (n. 3 ), 10 (‘The average number of parties in multiparty cases was 4. However, 14% of multiparty cases involved over 5, and one as many as 31 parties’); Gerbay (n. 39 ), 242 (‘The ICC’s data show a significant increase in arbitrations involving more than two parties in recent times. In the period 1982–1992, approximately 20% of ICC arbitrations involved more than two parties. In 2012, the proportion had increased to one-third of all ICC arbitrations. Recent LCIA’s statistics show a similar increase’); HKIAC 2015 Case Statistics (n. 3 ), (‘A quarter of the new arbitration cases submitted to HKIAC involved multiple parties or contracts’); LCIA Registrar’s Report 2015 (n. 3 ), 5 (reporting ‘18 applications for consolidation under the new provisions in the 2014 Rules involving 77 arbitrations’, with 13 applications involving 52 arbitrations ‘granted by the relevant Tribunal’).

See 2012 Queen Mary/White & Case survey (n. 6 ), 16–17. Ali Yeşilirmak found 22 cases with a request for interim relief out of 613 AAA/ICDR arbitrations from late 1997 through 2000; in 6 cases the request was granted, in 4 it was denied, and in 12 cases the request was withdrawn or the case ended. See Ali Yeşilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International, 2005), 165–6. He reported a ‘clear increase in the requests for provisional measures in ICC arbitration’ over roughly the same period, finding ‘nearly 75 awards dealing with provisional measures’ in ICC files ‘between the mid-eighties and 1998’ and 30 awards in English concerning provisional measures during 1999 (p. 166); Richard Naimark and Stephanie Keer, ‘Analysis of UNCITRAL Questionnaires on Interim Relief’, 16 Mealey’s Int’l Arb. Rep. 23 (2001); repr. in Drahozal and Naimark (n. 2 ), 129 (reporting results of survey on experience with interim measures).

See e.g. Michelle Grando, ‘The Coming of Age of Interim Relief in International Arbitration: A Report from the 28th Annual ITA Workshop’ (Kluwer Arbitration Blog, 2016): < http://kluwerarbitrationblog.com/2016/07/20/the-coming-of-age-of-interim-relief-in-international-arbitration-a-report-from-the-28th-annual-ita-workshop/ > (reporting research by Patricia Shaughnessy finding ‘that as of June 2016, ICDR registered 67 emergency arbitrator requests, SIAC 50, ICC 34, SCC 23, and HKIAC 6 requests’); Sarah Zagata Vasani, ‘The Emergency Arbitrator: Doubling as an Effective Option for Urgent Relief and an Early Settlement Tool’ (King & Spalding Energy Newsletter, 2015): < http://www.kslaw.com/library/newsletters/EnergyNewsletter/2015/May/article8.html > (reporting data on requests for interim measures before emergency arbitrators in cases administered by the ICDR, ICC, SIAC, and Stockholm Chamber).

2015 Queen Mary/White & Case survey (n. 6 ), 27 (46% favour ‘[r]ecourse to relevant domestic courts; 29% prefer ‘[r]ecourse to an emergency arbitrator’).

Born (n. 20 ), 1896:(‘Thus, the average annual rate of challenges per pending ICC case in the eleven years prior to adoption of the IBA Guidelines (1993–2003) was 2.10%, while the rate of challenges per pending case in the nine years since 2004 (2004–2012) has been 3.23%—an increase of more than 50%.’ For data on arbitrator challenges in investment arbitration, see e.g. Georgios Dimitropoulos, ‘Constructing the Independence of International Investment Arbitrators: Past, Present and Future’, 36 Nw. J. Int’l L. & Bus. 371 (2016), 402–3.

See Catherine Rogers and Idil Tumer, ‘Arbitrator Challenges: Too Many or Not Enough?’ in Arthur Rovine (ed.), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2014 (Brill, 2015), 128, 132–5; 2015 ICC Dispute Resolution Statistics (n. 3 ), 14: ‘[T]he number of challenges in the course of the proceedings fell by over half in 2015, compared with 2014. Of the 28 challenges made during the year only 3 were accepted by the Court.’

Joint Report of the International Commercial Disputes Committee & the Committee on Arbitration of the New York City Bar Association, ‘Secretaries to International Arbitral Tribunals’, 17 Am. Rev. Int’l Arb. 575 (2006), 585; International Council for Commercial Arbitration, Young ICCA Guide on Arbitral Secretaries (ICCA 2014), 62; 2015 Queen Mary/White & Case survey (n. 6 ), 43, 11–12.

Compare Fan Kun, ‘An Empirical Study of Arbitrators Acting as Mediators in China’, 15 Cardozo J. on Conflict Resol. 777 (2014), 790 (‘The Chinese arbitrators generally consider that it is appropriate for the arbitrators to suggest the use of mediation to the parties at the arbitrators’ own initiative (91.7% of the respondents’); Gabrielle Kaufmann-Kohler and Fan Kun, ‘Integrating Mediation into Arbitration: Why It Works in China’, 25 J. Int’l Arb. 479 (2008), 487 (‘In practice, although not obligated to do so by law, Chinese arbitrators systematically take the initiative to ask the parties if they wish the tribunal to assist them in reaching an amicable solution’); Edna Sussman, ‘The Arbitrator Survey: Practices, Preferences and Changes on the Horizon’, 26 Am. Rev. Int’l Arb. 517 (2015), 537 (51.9% of respondents reported that they were willing to mediate in a case in which they were sitting as arbitrator, as long as the parties gave their informed consent).

Christian Bühring-Uhle et al., ‘The Arbitrator as Mediator: Some Recent Empirical Insights’, 20 J. Int’l Arb. 81 (2003); repr. in Drahozal and Naimark (n. 2 ), 135.

See Table 27.3 . For a description of a number of studies on choice of applicable law, see Stefan Vogenauer, ‘Regulatory Competition Through Choice of Contract Law and Choice of Forum in Europe: Theory and Evidence’, in Horst Eidenmüller (ed.), Regulatory Competition in Contract Law and Dispute Resolution (C. H. Beck, 2013), 227, 244–592; Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013), 232 (concluding, based on sample of published arbitration awards, that ‘[i]n all but three of those [39] cases, the tribunal employed an interpretative method consistent with the applicable law’; but noting that all three of those awards were ‘applying the law of a common law jurisdiction’).

See e.g. HKIAC 2015 Case Statistics (n. 3 ) (‘Hong Kong law was the top choice for governing substantive contracts, followed by English law and Chinese law’); Swiss Chambers Commented Statistics 2015 (n. 3 ), 6 (in 75% of all cases from 2004–15, parties chose Swiss law).

W. Laurence Craig et al., International Chamber of Commerce Arbitration , 3rd edn (Oxford University Press, 2000), 623.

Christopher Drahozal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’, 33 Vand. J. Transnat’l L. 79 (2000), 111–21; repr. in Drahozal and Naimark (n. 2 ), 233.

E.g. Bruce Benson, ‘The Spontaneous Evolution of Commercial Law’, 55 S. Econ. J. 644 (1989), 661 (describing the lex mercatoria as customary law that is superior to government-made law because ‘[p]olitically dictated rules are not designed to support the market process; in fact government made law is likely to do precisely the opposite’).

Thomas Carbonneau and François Janson, ‘Cartesian Logic and Frontier Politics: French and American Concepts of Arbitrability’, 2 Tul. J. Int’l & Comp. L. 193 (1994), 221–2 (‘At the end of the day, transborder adjudication will be guided by the dictates of the marketplace and the international commercial community and completely exempt from the reach of sovereign national authority. Law will be generated within the confines of a fully privatized system that is unaccountable to any public organization or process’).

Klaus Berger et al., ‘The CENTRAL Enquiry on the Use of Transnational Law in International Contract Law and Arbitration’, in Klaus Berger (ed.), The Practice of Transnational Law (Kluwer Law International, 2001), 91; repr. in Drahozal and Naimark (n. 2 ), 207. See also 2010 Queen Mary/White & Case survey (n. 6 ), 15 (examining the extent to which survey respondents ‘have used a number of international laws, transnational rules or principles to govern their disputes’).

2015 ICC Dispute Resolution Statistics (n. 3 ), 17 (‘In just 7 contracts, parties chose rules or principles other than national laws. These included the UN Convention on Contracts for the International Sale of Goods (4 contracts), the UNIDROIT Principles of International Commercial Contracts (2 contracts), and equity (1 contract)’).

Felix Dasser, ‘Mouse or Monster? Some Facts and Figures on the Lex Mercatoria ’, in Reinhard Zimmermann (ed.), Globalisierung und Entstaatlichung des Rechts, Teilband II: Nichtstaatliches Privatrecht: Geltung und Genese (Mohr Siebeck, 2008), 129, 142–5 (although noting somewhat greater frequency in contracts with state parties). See also Felix Dasser, ‘That Rare Bird: Non-National Legal Standards as Applicable Law in International Commercial Arbitration’, 5 World Arb. & Med. Rev. 143 (2011).

Ralf Michaels, ‘The UNIDROIT Principles as Global Background Law’, 19 Unif. L. Rev. 643 (2014), 643–54 (finding, based on cases in UNILEX database, that ‘[p]arties rarely choose the PICC’; ‘[a]djudicators use the PICC even when they have not been chosen’; ‘their use as a system is rare and rarely successful’; and ‘[m]ost use is made of individual provisions, and in connection with other laws’); Eleonora Finazzi Agrò, ‘The Impact of the UNIDROIT Principles in International Dispute Resolution in Figures’, 16 Unif. L. Rev. 719 (2011), 720 (providing statistical data on the use of the UNIDROIT Principles in international arbitration and court cases, and admitting that ‘seventeen years after the publication of the first edition of the UNIDROIT Principles, these figures may appear not too impressive’). See also Guiditta Cordero-Moss and Daniel Behn, ‘The Relevance of the UNIDROIT Principles in Investment Arbitration’, 19 Unif. L. Rev. 570 (2014), 572 (‘The comprehensive set of investment arbitration cases referencing the PICC show that they have been used as “rules of law” applicable to the dispute in one case, as a source of international law in one case, as a corroboration of international law in three cases, and as a corroboration of national law in five cases’).

See also e.g. Sussman (n. 58 ), 527–35 (survey asking arbitrators various questions about deliberations and decision-making).

See e.g. Rishab Gupta and Katrina Limond, ‘Who Is the Most Influential Arbitrator in the World?’, Global Arb. Rev. (2016), table 7 (calculating ‘Arbitrator Influence Index’, defined as follows: ‘an arbitrator has an AI index of n if n of his or her decisions issued in investment treaty arbitrations have at least n citations’, excluding self-citations and averaging three AI indexes based on ‘whether his or her appointment was by an investor, a state or a neutral appointment’); Daphna Kapeliuk, ‘The Repeat Appointment Factor: Exploring Decision Patterns of Elite Investment Arbitrators’, 96 Cornell L. Rev. 47 (2010), 72 (defining ‘those arbitrators who received appointments at least four times to cases registered and concluded during the period under analysis as elite arbitrators’); Ajay Sharma, ‘A Study on the Arbitrators Appointed in the ICSID Cases Commencing Since 2011’, SSRN, 2 (defining the 18 arbitrators with the most appointments as ‘leading arbitrators’); Robert Kovacs and Alex Fawke, ‘An Empirical Analysis of Diversity in Investment Arbitration: the Good, the Bad and the Ugly’, 12(4) Transnat’l Disp. Mgmt. (2015), 9 (using dataset of ‘52 individuals with ten or more appointments’).

Todd Tucker, ‘Inside the Black Box: Collegial Patterns on Investment Tribunals’, 7 J. Int’l Disp. Settlement 183 (2016), 187–95.

Kovacs and Fawke (n. 67 ), 21–2 (adding that ‘[f]ew of the most appointed ISDS arbitrators currently work at major international commercial firms’, likely to avoid conflict of interest concerns). See also Joost Pauwelyn, ‘The Rule of Law Without the Rule Of Lawyers? Why Investment Arbitrators Are from Mars, Trade Adjudicators from Venus’, 109 Am. J. Int’l L. 761 (2015), 783 (table 6) (comparing ICSID arbitrators to World Trade Organization panellists); José Costa, ‘Comparing WTO Panelists and ICSID Arbitrators: The Creation of International Legal Fields’, 1(4) Oñati Socio-Legal Series (2011). For a critique of Pauwelyn’s broader thesis, see Catherine Rogers, ‘Apparent Dichotomies, Covert Similarities: A Response to Joost Pauwelyn’, AJIL Unbound (2016): < https://www.asil.org/blogs/apparent-dichotomies-covert-similarities-response-joost-pauwelyn >.

Sergio Puig, ‘Social Capital in the Arbitration Market’, 25 Eur. J. Int’l L. 387 (2014), 410–13, 419. See also Cai Congyan, ‘Structure of Arbitrators and Its Implications Towards ICSID Mechanism: An Empirical Analysis’, 9 J. World Inv. & Trade 333 (2008), 340 (table 1) and 343 (table 2) (describing nationality of ICSID arbitrators); Susan Franck, ‘Empirically Evaluating Claims About Investment Treaty Arbitration’, 86 N.C. L. Rev. 1 (2007), 78 (‘109 arbitrators (75% of the population) came from OECD countries.’).

Dezalay & Garth (n. 5 ), 34–41.

Thomas Schultz and Robert Kovacs, ‘The Rise of a Third Generation of Arbitrators? Fifteen Years after Dezalay and Garth’, 28 Arb. Int’l 161 (2012), 162. See also 2013 Queen Mary/PwC survey (n. 6 ), 22 (ranking important factors in company’s choice of arbitrator).

See e.g. 2015 ICC Dispute Resolution Statistics (n. 3 ), 14–15 (reporting that ‘arbitrators from North and West Europe continued to be the most frequently appointed’, although noting an ‘increase in the number of appointments and confirmations of arbitrators from Latin America’).

Ilhyung Lee, ‘Practice and Predicament: The Nationality of the International Arbitrator (with Survey Results)’, 31 Fordham Int’l L.J. 603 (2008), 628–9 (results from survey of 19 Korean lawyers with law firms in Seoul who had experience in international arbitration; reporting that respondents (1) ‘were nearly unanimous in indicating serious concern of the independence or impartiality of a Japanese arbitrator, with Japanese citizenship, who lives in Japan’; (2) ‘also indicated concern of an arbitrator with U.S. citizenship and residence, but born in Japan to Japanese parents’; (3) also expressed concern at ‘only slight lower’ numbers ‘for an arbitrator with U.S. citizenship, born in the U.S. to Japanese parents’; and (4) ‘expressed concern (though less serious in degree) for the American arbitrator living in Japan, as well as the American arbitrator living in the United States, or who has a Japanese spouse’).

Tony Cole and Pietro Ortolani, ‘Diversity in Arbitration in Europe: Insights from a Large Scale Empirical Study’, 12(4) Transnat’l Disp. Mgmt. (2015), 10 (‘The Survey results evidence a dramatic lack of ethnic diversity in the arbitration field throughout the whole continent: only 30 of 871 Survey respondents described their ethnicity as other than “White” … ’); Benjamin Davis, ‘American Diversity in International Arbitration 2003–2013’, 25 Am. Rev. Int’l Arb. 255 (2014), 260-62 (reporting survey results of respondents’ experience with American minorities, women, lawyers with disabilities, and LGBTQ lawyers); Benjamin Davis, ‘The Color Line in International Commercial Arbitration: An American Perspective’, 14 Am. Rev. Int’l Arb. 461 (2003), 489 (‘Over 80 percent of the U.S. Nationals [responding to survey] state they have participated with a U.S. minority in an international commercial arbitration. At the same time over two-thirds of the Other Nationals state that they have not’). See also Susan Franck et al., ‘The Diversity Challenge: Exploring the “Invisible College” of International Arbitration’, 53 Colum. J. Transnat’l L. 429 (2015), 446–465 (providing demographic information on attendees at the 2014 meeting of the International Congress of Commercial Arbitration (ICCA) in Miami).

E.g. Puig (n. 70 ), 404–5 (‘[A]round 93 per cent of all the appointments are of male arbitrators, suggesting an extreme gender imbalance. It gets even worse: only two women, Professors Stern and Kaufmann-Kohler combined, held three-quarters of all female appointments, pushing the male–female composition of arbitrators in the network to an embarrassing 95 per cent to 5 per cent proportion’); Gus Van Harten, ‘The (Lack of) Women Arbitrators in Investment Treaty Arbitration’, Colum. FDI Persp. (2012), 1: < http://ccsi.columbia.edu/files/2014/01/FDI_59.pdf > (reporting that in known investment treaty arbitrations prior to May 2010, only 4% of arbitrators were women and only 6.5% of arbitrator appointments went to women); Franck (n. 70 ), 81–2 (‘Women were a tiny fraction of arbitrators in investment treaty arbitration. There were five women (3.5%) in the population of 145 investment treaty arbitrators … In total, the five women appeared in only nine cases and were present in 11% of all awards’); Kovacs and Fawke (n. 67 ), 12 (‘Out of the entire dataset of 499 arbitrators, only 25 are women’).

Lucy Greenwood and C. Mark Baker, ‘Getting a Better Balance on International Arbitration Tribunals’, 28 Arb. Int’l 653 (2012), 655–6 (‘[I]t appears that the best estimate of the percentage of women appointed to international commercial arbitration tribunals is around 6%’); Cole and Ortolani (n. 75 ), 8 (‘there is also evidence that non-Male arbitrators may on average receive less prestigious appointments’).

Greenwood and Baker (n. 77 ), 658 (‘The best estimates of 6% of women appointed as arbitrators on international arbitration tribunals is just over half the 11% figure for female partners on international arbitration teams.’); Kovacs and Fawke (n. 67 ), 12 (‘Around a quarter of partners in UK firms are women.’); Ben Hancock, ‘ADR Business Wakes Up to Glaring Deficit of Diversity’, Nat’l L.J. (2016) (reporting that 51% of US Circuit Court judges, 52% of US District Court judges, and 74% of U.S. law firm partners are white men); Erika Fry, ‘Here’s How Many Fortune 500 Board Seats Women Will Hold in 2016’, Fortune (2015): < http://fortune.com/2015/11/19/fortune-500-women-board-seats-2016-prediction/ > (20% of board seats in Fortune 500 companies were held by women, and ‘nearly one-third of new Fortune 500 directors appointed in 2014 were women’).

Swiss Chambers Commented Statistics 2015 (n. 3 ), 1, 9 (‘In 2015, 47% of the arbitrators appointed by the SCAI Arbitration Court were women’, while ‘only 5% of the arbitrators appointed by the parties or the co-arbitrators (as co-arbitrator or chair) were women’); LCIA Registrar’s Report 2015 (n. 3 ), 4 (‘in 2015: of the 195 appointees selected by the LCIA Court, 28.2% were women; of the 204 appointees selected by the parties, 6.9% were women; and of the 50 appointees selected by the nominees, 4% were women’); 2015 ICC Dispute Resolution Statistics (n. 3 ), 15 (‘A higher proportion of women were appointed by the Court (54%) than nominated by parties or co-arbitrators (46%), which contrasts with a breakdown of 29% appointments/71% nominations when men and women are taken together’). See also Mirèze Philippe, ‘Speeding Up the Path for Gender Equality’, TDM 1 (2017), www.transnational-dispute-management.com forthcoming, 3 (providing historical data on appointments of women by the ICC Court and concluding that ‘no large disparity exists between the number of women nominated collectively by the parties and the co-arbitrator and the number of women appointed by the Court’—although acknowledging that ‘75% of the arbitrators are nominated by the parties’).

See Sect. 27.2 .

E.g. UNCITRAL Arbitration Rules, Art. 9(1).

Ibid. Art. 12(1). In US domestic arbitration, although the default rule now is that party-appointed arbitrators must be neutral and independent, the parties can agree to have non-neutral party-appointed arbitrators (although the chair must be neutral). American Arbitration Association, ‘Code of Ethics for Arbitrators in Commercial Disputes, Note on Neutrality’ (ABA, 2004).

Martin Hunter, ‘Ethics of the International Arbitrator’, 53 Arb. 219 (1987), 223.

Richard Mosk and Tom Ginsburg, ‘Dissenting Opinions in International Arbitration’, in Matti Tupamäki (ed.), Liber Amicorum Bengt Broms (Finnish Branch of the International Law Association, 1999), 259, 275 (‘Although party-appointed arbitrators are supposed to be impartial and independent in international arbitrations, some believe that with the availability of dissent, arbitrators may feel pressure to support the party that appointed them and to disclose that support’).

See e.g. Drahozal and Naimark (n. 2 ), 260.

Moreover, focusing solely on dissenting opinions likely understates the extent of disagreement among arbitrators in a three-arbitrator tribunal.

2015 ICC Dispute Resolution Statistics (n. 3 ), 18 (another four awards indicated that the case was decided by a majority of the tribunal ‘without identifying the dissenting arbitrator’).

Albert Jan van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration’, in Mahnoush Arsanjani et al. (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff, 2011), 821, 824.

Lee Epstein et al., ‘Why (and When) Judges Dissent: A Theoretical and Empirical Analysis’, 3 J. Legal Analysis 101 (2011), 106 and n. 9. Of course, the likelihood of dissent is greater with a greater number of decision-makers.

Van den Berg (n. 88 ), 824.

Catherine Rogers, ‘The Politics of International Investment Arbitrators’, 12 Santa Clara J. Int’l L. 223 (2013), 245.

Ibid. 246. After examining data on outcomes in investment arbitration, Sergio Puig concludes that ‘[t]he party-appointing system has an effect in great part because of selection effect ’, although ‘there is no reason not to believe that, at some level, affiliation effect is also affecting arbitration’. See Sergio Puig, ‘Blinding International Justice’, 56 Va. J. Int’l L. 647 (2016).

Sergio Puig and Anton Strezhnev, ‘Affiliation Bias in Arbitration: An Experimental Approach’, 46 Journal of Legal Studies 371 (2017).

See CPR Non-Administered Arbitration Rules, Rule 5.4 (2007); CPR Rules for Administered Arbitration of International Disputes, Rule 5.4 (2014). According to CPR, more than 15% of its 2015 caseload of three-arbitrator tribunals used the screened selection process, to the evident satisfaction of parties and arbitrators involved.

In their experimental study, Puig and Strezhnev reported that arbitrators appointed by what they characterized as a blinded process tended to make similar decisions to those of arbitrators told they were appointed by the parties jointly. Puig and Strezhnev (n. 94 ), 25. But what they labeled a ‘blinded’ process was simply not mentioning arbitrator selection in the experimental scenario. So how a blinded selection would work, even in an experimental setting, remains an open empirical question.

Rand Institute for Civil Justice, ‘Business-to-Business Arbitration in the United States: Perceptions of Corporate Counsel’, (2011), 7 and 12: < http://www.rand.org/content/dam/rand/pubs/technical_reports/2011/RAND_TR781.pdf > (‘over 70 percent of respondents agreed, and only 14 percent disagreed’). See also 2012 Queen Mary/White & Case survey (n. 6 ), 38 (‘in-house counsel and private practitioners believe tribunals have unnecessarily ‘split the baby’ (i.e. courts in the same dispute would not likely have done so) in 18% and 20% of their cases, respectively’).

Dammann and Hansmann (n. 15 ), 34.

Stephanie Keer and Richard Naimark, ‘Arbitrators Do Not “Split the Baby”: Empirical Evidence from International Business Arbitrations’, 18 J. Int’l Arb. 573 (2001); repr. in Drahozal and Naimark (n. 2 ), 311.

Kapeliuk (n. 67 ), 81 (‘Of the 43 publicly available [ICSID] awards, 26 (60.5%) denied the claimant any recovery and 3 (7%) awarded the claimant 100% of the amount claimed. The claimant received some monetary award in the remaining 14 awards. Interestingly, only one award split the difference by awarding the claimant a sum ranging between 40% and 60% of the claimed amount. The results thus show that arbitration tribunals involving elite arbitrators do not have a tendency to render compromise awards’).

Carter Greenbaum, ‘Putting the Baby to Rest: Dispelling a Common Arbitration Myth’, 26 Am. Rev. Int’l Arb. 101 (2015), 121 (‘the majority of [JAMS] awards were rendered within the 0%-20% and 80%-100% of total claim buckets. This study confirms that arbitrators do not have a significant propensity to split claims. In fact, 85.6% of all claims fell into these two buckets. This indicates that compromise judgments are the exception rather than the rule’).

American Arbitration Association, ‘Splitting the Baby: A New AAA Study’ (2007): < https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_014040 > (sample of 111 ICDR awards from 2005) (finding u-shaped graph with ‘[o]nly 7% (8 cases) … awarded in the midrange (41-60% of their filed claim amount)’ and ‘93% … awarded outside the claim midrange’).

Another possibility is that repeat arbitrators may alternate ruling for and against the same party, not making compromise awards in any individual case but doing so in the aggregate.

In the experimental study described in the next subsection, Susan Franck et al. found that ‘[w]hile the data did not demonstrate arbitrators never “split the baby”—arbitrators sometimes did precisely that—it casts doubt on the universality of such a narrative.’ See Susan Franck et al., ‘Inside the Arbitrator’s Mind’, 66 Emory L.J. 1115 (2017).

For a more detailed discussion of the topic, see Ch. 36 in this Handbook by Anne van Aaken and Tomer Broude. See also Christopher Drahozal, ‘A Behavioral Analysis of Private Judging’, 67 Law & Contemp. Probs. 105 (2004); repr. in modified form in Drahozal and Naimark (n. 2 ), 319; Tony Cole (ed), The Roles of Psychology in International Arbitration (Kluwer Law International, 2017); Lucy Reed, ‘The Kaplan Lecture 2012. Arbitral Decision-Making: Art, Science or Sport?’ (2012): < http://www.arbitration-icca.org/media/1/13581569903770/reed_tribunal_decision-making.pdf >; Doak Bishop, ‘The Quality of Arbitral Decision Making and Justification’, 6 World Arb. & Med. Rev. 801 (2012); Shari Diamond, ‘Psychological Aspects of Dispute Resolution: Issues for International Arbitration’, in Albert Jan van den Berg (ed.), International Commercial Arbitration: Important Contemporary Questions (Kluwer Law International, 2003), 327, 336.

For other examples of experimental studies with arbitrators as subjects, see Dieter Flader et al., The Psychological/Communicative Preconditions for the International Arbitral Process: Initial Findings of a Research Project and its Methodology (ISPSW, 2012); Ray Friedman et al., ‘Causal Attribution for Interfirm Contract Violation: A Comparative Study of Chinese and American Commercial Arbitrators’, 92 J. App. Psych. 856 (2007), 862 (finding Chinese arbitrators ‘more likely [than American arbitrators] to make internal attributions for the organizational behaviors that they judged’); Sergio Puig and Anton Strezhnev, ‘The David Effect: Underdogs and Investment Arbitrators’, SSRN (2016), 3–4 (based on experimental scenario, finding that ‘arbitrators more often sympathize with claimants of middle-income states than with claimants from high-income states’ and that ‘low-income respondent states get a “compensation bump” over middle-income respondent states’). See also Edna Sussman, ‘Arbitrator Decision-Making: Unconscious Psychological Influences and What You Can Do About Them’, 24 Am. Rev. Int’l Arb. 487 (2013) (comparing results of a survey of arbitrators to results of simulation studies done with judges).

Franck et al. (n. 104 ).

Rebecca Helm et al., ‘Are Arbitrators Human?’, 13 J. Emp. Legal Stud. 666 (2016).

See Shane Frederick, ‘Cognitive Reflection and Decision Making’, 19 J. Econ. Persp. 25 (2005), 27.

Franck et al. (n. 104 ), supra note 110; Helm et al. (n. 108 ), 672.

Ibid. 678; Franck et al. (n. 104 ).

E.g. Helm et al. (n. 108 ), 676 (‘Option four (“The agency actively recruited a diverse workforce but also unlawfully discriminated against Dina based on her Islamic beliefs”) is the conjunction of option one (“The agency unlawfully discriminated against Dina based on her Islamic religious beliefs”) and option two (“The agency actively recruited a diverse workforce”). Hence, option four is, as a matter of deductive logic, less likely than either option one or option two’).

Drahozal (n. 105 ), 126–8.

See e.g. Rachel L. Wellhausen, ‘Recent Trends in Investor-State Dispute Settlement’, 7 J. Int’l Disp. Settlement 117 (2016), 128 (fig. 3) (finding that 33.1% of investment arbitrations resolved from 1990–2014 were resolved by settlement).

Win rates in court cases for comparable cases might provide such a baseline. But it is very difficult to identify truly comparable cases in court and arbitration, and no set of comparable court cases is available for investment arbitrations.

See supra note 10.

For studies examining the award of costs in international investment arbitrations, see Hodgson (n. 43 ) (‘A slight majority of arbitration tribunals (56 per cent) have required each party to bear its own costs, that is, an unadjusted costs order. Just 10 per cent of tribunals made a fully adjusted costs order [i.e. ordered one party to pay the other side’s party and tribunal costs in full] and 34 per cent a partially adjusted costs order [i.e. ordered one party to pay the other side’s party and tribunal costs in part]’); Susan Franck, ‘Rationalizing Costs in Investment Treaty Arbitration’, 88 Wash. U.L. Rev. 769 (2011), 777 (finding that ‘the overall experiences of investors and states were relatively equivalent, with (1) parties often responsible for equal costs, or (2) rough parity between investors and states when tribunals did shift costs’); Thomas Webster, ‘Efficiency in Investment Arbitration: Recent Decisions on Preliminary and Costs Issues’, 25 Arb. Int’l 469 (2009), 493–4 (‘Prior to 2005, it was accepted by many that costs did not follow the event, whether with respect to arbitration costs or legal costs … [F]rom 2005 to 2009 … the “costs follow the event” principle was apparently followed in more than half of the awards (64 per cent)’). For studies examining the award of costs in international commercial arbitration, see 2012 Queen Mary/White & Case survey (n. 6 ), 40–41 (survey data on cost allocation); John Gotanda, ‘Yin and Yang: A Comparison of Monetary Remedies in International Investment and Transnational Commercial Disputes’, in Ingeborg Schwenzer and Lisa Spagnolo (eds), Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference 49 (Eleven International Publishing 2011), 61 (‘CIETAC–CISG … claimants recovered parties’ costs at low frequencies. In CIETAC–CISG disputes, attorneys’ fees were awarded in 28% of all cases in the current study’); Webster (n. 120 ), 493 and 513 (table 2) (based on random sample of 100 ICC awards from 2006 to 2008) (finding that ‘the principle that the “costs follow the event” was generally applied, although with considerable adaptation to the circumstances); Quero (n. 42 ), 11 (45% of Stockholm Chamber awards from 2007 to 2014 ordered one party to bear all arbitration costs and attorneys’ fees; 34% allocated arbitration costs and attorneys’ fees based on relative success on the merits; 21% ordered parties to share arbitration costs equally and bear own attorneys’ fees).

Daniel Behn et al., ‘Poor States or Poor Governance? Explaining Outcomes in Investment Treaty Arbitration’, SSRN (2016), 23–25.

See e.g. Wellhausen (n. 117 ), 129 (sample of publicly available awards as of 31 December 2015) (‘Of the 461 concluded arbitrations, the parties reached a settlement in 153, the investor won in 134, and the state won in 174’, with an investor win defined to mean any case in which a state was found to have acted wrongfully); Daniel Behn, ‘Legitimacy, Evolution, and Growth in Investment Treaty Arbitration: Empirically Evaluating the State-of-the-Art’, 46 Geo. J. Int’l L. 363 (2015), 372 (sample of 147 cases fully or partially resolved from September 2011 to September 2014) (finding investor won on the merits in 43%, lost on jurisdiction in 33%, and lost on the merits in 24%); Susan Franck and Lindsey Wylie, ‘Predicting Outcomes in Investment Treaty Arbitration’, 65 Duke L.J. 459 (2015), 489–90 (sample of publicly available awards as of 1 January 2012) (‘For the 144 awards finally resolving treaty disputes, fifty-seven cases (39.6%) were investor wins. By contrast, there were eight-seven cases (60.4%) where respondents won with no state liability’); Franck (n. 120 ), 49 (sample of publicly available awards as of 1 June 2006) (‘Out of the fifty-two awards finally resolving treaty claims, there were twenty awards (38.5%) where investors won and tribunals awarded damages. By contrast, there were thirty awards (57.7%) where governments paid investors nothing. There were also two awards embodying settlement agreements’).

Krzysztof Pelc argues that the ‘legal merit’ of investment arbitration claims ‘has declined precipitously over time, and that this decline is concentrated in indirect expropriation cases’, with investors winning ‘only 21% of indirect expropriation disputes in the last decade’—although it is an overstatement to call the cases ‘frivolous’ based on the evidence presented. See Krzysztof Pelc, ‘Does the International Investment Regime Induce Frivolous Litigation?’ SSRN (2016), 32.

Behn et al. (n. 121 ), 23–4. See also Thomas Schultz and Cédric Dupont, ‘Investment Arbitration: Promoting the Rule of Law or Over-Empowering Investors? A Quantitative Empirical Study’, 25 Eur. J. Int’l L. 1147 (2014), 1158 (suggesting ‘legal-economic definition of a success’ for an investor as ‘an arbitral decision awarding it 25 per cent or more of the figure it has claimed’).

Franck and Wylie (n. 122 ), 467 (sample of investment arbitration awards publicly available as of 1 January 2012); Franck (n. 120 ), 58–9 (‘The average amount of damages awarded by tribunals was approximately US$10.4 million’ and ‘[t]he difference between the average amounts claimed and awarded was approximately US$333 million’); PwC, 2015 International Arbitration Damages Research (2015), 6: < https://www.pwc.com/sg/en/publications/assets/international-arbitation-damages-research-2015.pdf > (sample of 95 publicly available international arbitration awards over the past 25 years, of which 74% were ICSID investment arbitrations) (‘The amount awarded by Tribunals was, on average, 37% of the amount claimed’); Gus Van Harten, ‘Who Has Benefited Financially from Investment Treaty Arbitration? An Evaluation of the Size and Wealth of Claimants’ (2016), 1: < http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1136&context=olsrps > (finding that ‘the beneficiaries of ISDS-ordered financial transfers, in the aggregate, have overwhelmingly been companies with more than USD1 billion in annual revenue—especially extra-large companies with more than USD10 billion—and individuals who have over USD100 million in net wealth’).

Howard Mann, ‘ISDS: Who Wins More, Investors or States?’, Inv. Treaty News (June 2015).

Rogers (n. 92 ), 234.

Gus Van Harten, ‘Arbitrator Behavior in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration’, 50 Osgoode Hall L.J. 211 (2012), 237–42. For other studies examining jurisdictional decisions in investment arbitrations, see Kathleen McArthur and Pablo Ormachea, ‘International Investor–State Arbitration: An Empirical Analysis of ICSID Decisions on Jurisdiction’, 28 Rev. Litig. 559 (2009); Ole Fauchald, ‘The Legal Reasoning of ICSID Tribunals: An Empirical Analysis’, 19 Eur. J. Int’l. L. 301 (2008).

E.g. Christopher Drahozal and Peter Rutledge, ‘Contract and Procedure’, 94 Marquette L. Rev. 1103 (2011), 1141 (‘Arbitrators had issued 135 clause construction awards: 95 (70%) holding that the arbitration clause permitted class arbitration; 7 (5%) holding that the arbitration clause did not permit class arbitration; and 33 (24%) in which the parties stipulated that the arbitration clause permitted class arbitration’).

Gus Van Harten, ‘Arbitrator Behavior in Asymmetrical Adjudication (Part Two): An Examination of Hypotheses of Bias in Investment Treaty Arbitration’, 53 Osgoode Hall L.J. 540 (2016), 546. See also Gus Van Harten, Sovereign Choices and Sovereign Constraints (Oxford University Press, 2013), 15–17 (‘no evidence emerged that the arbitrators in any case discussed the relative accountability of a legislature as a possible reason for restraint in the review of legislative decisions … there was a lack of evidence of restraint based on the relative capacity of governments … there was limited evidence of arbitrator restraint due to the role of another adjudicative forum … These findings indicate that arbitrators adopted an unrestrained approach relative to what one might expect from courts’).

Van Harten, ‘Arbitrator Behavior’ (n. 130 ), 215 and 239 (recognizing that his findings ‘do not establish the truth of any theoretical expectation of systemic bias’).

Rogers (n. 92 ), 235 (‘These outcomes appear to be more expansive than those preferred by individuals whose policy preferences are for narrower investment arbitration jurisdiction. They do not, however, represent a finding that investment arbitrators’ “expansive” jurisdictional findings are somehow an improper deviation from the “correct” legal outcome’).

Susan Franck, ‘Development and Outcomes of Investment Treaty Arbitration’, 50 Harv. Int’l L.J. 435 (2009), 473. See also Susan Franck, ‘The ICSID Effect? Considering Potential Variations in Arbitration Awards’, 51 Va. J. Int’l L. 825 (2011), 898 (sample of publicly available awards as of 1 June 2006) (finding ‘no general differences between ICSID and non-ICSID cases in amounts claimed and outcomes’ and ‘no reliable relationship for either amounts claimed or outcome, as a function of Development Status and all ICSID awards’).

Gus Van Harten, ‘The Use of Quantitative Methods to Examine Possible Bias in Investment Arbitration’, Yb. on Int’l Inv. L. & Pol’y 859 (2011), 867–9.

Susan Franck et al., ‘Response: Through the Looking Glass: Understanding Social Science Norms for Analyzing International Investment Law’, Yb. on Int’l Inv. L. & Pol’y 883 (2011), 893–5. See also Gus Van Harten, ‘Reply’, Yb. on Int’l Inv. L. & Pol’y 917 (2011); Susan Franck et al., ‘Rejoinder’, Yb. on Int’l Inv. L. & Pol’y 939 (2011).

Susan Franck, ‘Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes’, 55 Va. J. Int’l L.13 (2014), 60.

Behn et al. (n. 121 ), 34. See also Behn (n. 122 ), 410–11 (‘respondent states with a very high [Human Development Index] score are more likely to successfully defend an investment treaty claim than respondent states with lower HDI scores. In fact … the lower the respondent state’s HDI score, the more likely that respondent state will lose an investment treaty case’); Schultz and Dupont (n. 124 ), 1167 (‘In the full period surveyed (1972–2010) … low income countries won 50 percent of the claims that were won by one of the parties … while high income countries were successful in 69 per cent of such cases’).

Behn et al. (n. 121 ), 34. Some studies have found other factors, such as attorney representation and arbitrator characteristics, to be correlated with outcomes in investment arbitrations as well. E.g. Franck and Wylie (n. 122 ), 520–21 (sample of investment arbitration awards publicly available as of 1 January 2012) (‘case-related and hybrid models demonstrated that ITA outcomes exhibited a degree of predictability, and the results were not completely random. The variables most likely to predict outcomes were arguably case selection effects, including investor identity and the presence of experienced counsel’).

Pierre Lalive, ‘Enforcing Awards’ in The ICC, 60 Years of ICC Arbitration: A Look at the Future (ICC, 1984), 315, 318–19 (‘[T]he great majority of awards are recognized and enforced “spontaneously”—over 90% as far as ICC arbitrations are concerned’).

See Crystal Robles, ‘The 2014 Survey: How Well Are Arbitral Awards Enforced in Practice?’ 29(2) News & Notes from the Institute for Transnational Arbitration 5 (2014) (survey respondents were ‘practitioners with experience in over 2,000 arbitrations resulting in awards in over 35 jurisdictions’). See also 2008 Queen Mary/PwC survey (n. 6 ), 8 (‘84% of respondents indicated that the opposing party had honoured the award in full in more than 76% of cases’).

Richard Naimark and Stephanie Keer, ‘Post-Award Experience in International Commercial Arbitration’ in Drahozal and Naimark (n. 2 ), 269, 270–71.

Judith Gill and Matthew Hodgson, ‘Costs Awards: Who Pays?’, Global Arb. Rev. (15 September 2015).

Albert Jan Van den Berg, ‘Refusals of Enforcement Under the New York Convention of 1958: The Unfortunate Few’, 10 ICC Int’l Ct. Arb. Bull. 75 (1999), 75. See also Pouget (n.44), 14 (estimating ‘[a]verage length of recognition/enforcement proceedings by region’ based on hypothetical case, ranging from 39 weeks in East Asia and the Pacific to 386 weeks in South Asia).

In addition, see Ahmed Almutawa and A. F. M. Maniruzzaman, ‘Problems of Enforcement of Foreign Arbitral Awards in the Gulf Cooperation Council States and the Prospect of a Uniform GCC Arbitration Law: An Empirical Study’, 12(2) Transnat’l Disp. Mgmt. (2015), 24–5 (reporting survey results (based on 41 respondents, of whom 87.5% ‘had experience in the field of arbitration in one of more of the GCC states’), that ‘[o]f the six GCC states, Bahrain and the UAE were viewed as the friendliest’, while Saudi Arabia ‘was still viewed as the least friendly toward enforcement of foreign arbitral awards’).

Christopher Whytock, ‘The Arbitration-Litigation Relationship in Transnational Dispute Resolution: Empirical Insights from the US. Federal Courts’, 2 World Arb. & Med. Rev. 39 (2008), 74. See also Vera Korzun and Thomas Lee, ‘An Empirical Survey of International Commercial Arbitration Cases in the US District Court for the Southern District of New York, 1970–2014’, 39 Fordham Int’l L.J. 307 (2015), 343–4 (identifying 122 cases seeking recognition or enforcement and 25 cases seeking vacatur of international arbitral awards in the U.S. District Court for the Southern District of New York from 1970 to 2014, although not indicating the outcome of those cases).

Randall Peerenboom, ‘Seek Truth from Facts: An Empirical Study of Enforcement of Arbitral Awards in the PRC’, 49 Am. J. Comp. L. 249 (2001), 254; repr. in Drahozal and Naimark (n. 2 ), 285. See also Corinne Tay, ‘Enforcement of Arbitral Awards in the People’s Republic of China’, 26(2) Int’l Constr. L. Rev. 207 (2009), 243 (survey of 53 lawyers based in the People’s Republic of China; 32% agreed or strongly agreed, 36% disagreed or strongly disagreed, and 32% were neutral toward the statement that ‘[t]he award can be easily converted into cash terms within the PRC’). Compare Wang Sheng Chang, ‘Enforcement of Foreign Arbitral Awards in the People’s Republic of China’, in Albert Jan van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention (Kluwer Law International, 1999), 461; repr. in Drahozal and Naimark (n. 2 ), 277 (finding that Chinese courts ‘have recognized and enforced more than 87.7% of awards (as against the non-enforcement of 12.2% of CIETAC awards and 7.14% of foreign awards’, although acknowledging that the results were ‘incomplete’ because ‘the responding courts were only a small proportion of those questioned’).

Felix Dasser, ‘International Arbitration and Setting Aside Proceedings in Switzerland: An Updated Statistical Analysis’, 28 ASA Bull. 82 (2010), 85 and 92. See also Felix Dasser, ‘International Arbitration and Setting Aside Proceedings in Switzerland: A Statistical Analysis’, 25 ASA Bull. 444 (2007), 452 (finding that 7% of cases in the Swiss Federal Supreme Court from 1989 to 2005 ‘led to a complete or partial setting aside of the award’).

Alison Ross, ‘Italian Judges Tend to Uphold Awards, Research Shows’, Global Arb. Rev. (2016) (summarizing study prepared in Italian and available at: < http://res.cloudinary.com/lbresearch/image/upload/v1473350245/indagine_statistica_sull_impugnazione_del_lodo_arbitrale_nazionale_88116_1657.pdf) >.

Johan Munck and Helga Hullmann, ‘Challenge of Arbitral Awards Before Courts of Appeals’, Svensk Juristtidning 1 (2015), 13.

Diana Hu and Luke Nottage, ‘The International Arbitration Act Matters in Australia: Where to Litigate and Why (Not)?’, SSRN (2017), 2–3. See also Albert Monichino et al., ‘International Arbitration in Australia: Selected Case Notes and Trends’, 19 Australian J. Int’l L. 181 (2012), 184–5.

By comparison, note that the studies by Felix Dasser about enforcement practices of Swiss courts include both published and unpublished court decisions. See Dasser, ‘Statistical Analysis’ (n. 147 ), 450.

Drahozal and Naimark (n. 2 ), 264 (‘courts would seem much less likely to report decisions enforcing awards than decisions denying enforcement (because enforcement generally is routine)—although that assertion could be verified empirically’).

Richard Posner, ‘An Economic Analysis of the Use of Citations in the Law’, 2 Am. L. & Econ. Rev. 381 (2000), 382 (stating that citation analysis is ‘a well-established method of empirical research in law, economics, sociology (especially the sociology of science), and academic administration’).

The availability of awards is relevant both for purposes of the study itself (to have awards to examine for citations) and for the development of a system of precedent (it is difficult to cite awards as precedent if awards are not publicly available).

Jeffrey Commission, ‘Precedent in Investment Treaty Arbitration: A Citation Analysis of a Developing Jurisprudence’, 24 J. Int’l Arb. 129 (2007), 149–51, 158.

Ballan (n. 44 ), 82 (excluding outliers).

Christopher Gibson and Christopher Drahozal, ‘Iran–United States Claims Tribunal Precedent in Investor–State Arbitration’, 23 J. Int’l Arb. 521 (2006), 540, 543–4.

Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse? The 2006 Freshfields Lecture’, 23 Arb. Int’l 357 (2007), 362–7.

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A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community

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Despite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.

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Introduction

Far too little attention has been paid to analyzing international commercial arbitration from the critical perspectives, including the third world perspective. This gap is worth investigating because of the increasingly significant role of international commercial arbitration in global governance. In particular, the liberal orientation of contemporary global governance is under the influence of arbitration as a significant and predominant mode of dispute resolution in cross-border trade (Muir Watt 2020 ). A third world perspective, which criticizes the liberal world order (Bianchi 2016 ), has the potential to bring new light to the critical analysis of international commercial arbitration as a method of international dispute settlement.

There is no coherent and distinctive definition of the Third World Approach to International Law (TWAIL) because it involves distinct strands influenced by critical legal theory and other inclinations (Bianchi 2016 ). Notwithstanding the diversity of TWAIL perspectives and the heterogeneous group of its scholars and activists, TWAIL scholarship is united in its broad opposition to the current global international legal and economic order as well as promoting the development of an alternative normative legal framework for international governance (Mutua 2000 ). Specifically, TWAIL aims to advance a methodological reorientation in international law by highlighting the links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime (Chimni 2013 ; Bianchi 2016 ; al Attar 2020 ). The focus of TWAIL has been on different areas of public international law and international economic law (Gathii 2011 ). While public international law is mainly concerned with inter-state relations, international economic law, in its broadest sense, extends to ‘all national and international legal norms that affect transnational movements of goods, services, capital and labor’ (Paul 1995 , p. 609). The broad definition of the latter field of law also covers international commercial arbitration. This poses the question of whether and to what extent international commercial arbitration can be a potential field of study from a TWAIL perspective.

The mainstream legal scholarship of the field of international economic law considers international commercial arbitration as a rule-oriented dispute settlement mechanism, where the influence of ideology or authority is minimal (Chimni 2013 ). Such an assumption can be put into question from a TWAIL perspective, which has a clear interest in bringing to the foreground the power relationships within the international community reflected in legal constructs. Nevertheless, TWAIL scholarship hardly makes specific references to international commercial arbitration as well as its political economy, institutional structures, and substantive impact. This may be partly explained by the fact that elements of politics and power relationships are not self-evidently at play in private law. In contrast, power dynamics have had more presence in investment arbitration debates. Nevertheless, international commercial arbitration precedes investment arbitration. In particular, the historical oil nationalization arbitrations, which have been considered by some Third World scholars as ‘flagrant proof of bias’ in arbitration (Shalakany 2000 , p. 445), were indeed commercial arbitrations involving state parties. Furthermore, international commercial arbitration is also concerned with allocation of powers between national courts and arbitral tribunals. Such attributes as well as growing tendencies to harmonize international commercial arbitration across the globe make this field of law susceptible to a TWAIL analysis.

Notably, the focus of TWAIL scholarship on moral equivalency of cultures and peoples and its rejection of universalization of specific cultures (Mutua 2000 ) is a fertile ground for critically studying international commercial law from the prism of sustainable diversity. Sustainable diversity denotes accepting all traditions of the world and seeing them as mutually interdependent, a perception which in turn enhances the prospect of dispute settlement (Glenn 2007 ). A TWAIL perspective enables a particular conceptualization of international commercial arbitration that elucidates some of the historical roots of lack of sustainable diversity of the arbitral actors and cultures and may ultimately help with remedying the issue. In particular, TWAIL’s attention to the postcolonial nature of international law and asymmetries of power invites a re-examination of how political and commercial power relations are relevant to international commercial arbitration through the advent of constructs and concepts such as transnational law. Relatedly, and from a critical theory perspective, the arbitration system is part of the broader narrative of power dynamics between the global South and North, and its legitimacy is undermined by the fact that it is not representative of the global variety of perspectives (Karton 2022 ). Although such concerns have mainly been raised with regard to investor-state arbitration, they are also relevant to international commercial arbitration. This is because the perspectives of a dominant group within the society can gradually form a benchmark for views on international commercial dispute resolution. In other words, ‘normativity’ within the resolution of international commercial disputes may be shaped by a narrow segment of the society to the exclusion of other perspectives (Karton 2022 ).

The impact of power dynamics and the role of dominant groups in the development of international commercial arbitration and its conceptual apparatus is directly related to the concept of hegemony, which is a central theme of TWAIL scholarship in rethinking the resistance to international law (Rajagopal 2003 ). Inspired by Antonio Gramsci, hegemony is understood as production, reproduction, and mobilization of popular consent constructed by any dominant group by relying upon the confluence between force and moral ideas (Rajagopal 2003 ). Such consent is secured via a process through which the dominant powers exhibit their own interests as universal (Knox 2019 ).

More specifically, Western hegemony denotes a historical and cultural influence of colonialism leading to the dispersal of Western customs throughout the world (Worth 2015 ). As a corollary, Western legal traditions can also be considered as an instrumental part of the hegemony in this sense. For example, European laws used to be extensively deployed in the imperial project and subjecting the colonized territories into foreign political and cultural norms (Roy 2008 ). Notably, colonial laws continue to have contemporary relevance as an instrument of hegemony (Roy 2008 ). The prominent example of such relevance in the commercial arbitration domain is legislations influenced by the colonial laws even after independence (Asouzu 2004 ). For instance, the 1889 English Arbitration Act was extensively adopted by the Commonwealth nations Footnote 1 (Kidane 2017 ). This is while arbitration (and similar institutions) in former colonies was not an unrecognized phenomenon. Footnote 2

Against this background, this paper seeks to revisit transnational autonomy of international commercial arbitration by drawing on the concept of hegemony as viewed from the TWAIL perspective. Accordingly, the central question that this paper attempts to answer is to what extent the transnational authority of international commercial arbitration, as a private method of dispute resolution backed by the imperium of states, is a hegemonized legal institution from a TWAIL perspective.

Before we turn to the main analysis, it is necessary to discuss a methodological point as well as a clarification on terminology. As regards methodology, the line of approach taken in this work is built, mainly, around the concept of hegemony as understood by Gramsci and later borrowed in TWAIL scholarship. Given the counter-hegemonic political economic approach of TWAIL, the analysis also draws on the literature on the political economy of international commercial arbitration to highlight the role of legal constructs in perpetuating existing global power and wealth disparities.

For definitional purposes, we use the term ‘international commercial arbitration’ in this paper to refer to a method of dispute resolution whereby the parties to contracts agree (through arbitration clauses or separate submission agreements) to have their disputes arising from all relationships of a commercial nature, whether contractual or not, resolved by one or more private individuals, i.e., the arbitrators rather than by a court of law. What distinguishes this method of dispute resolution from investment treaty arbitration is the legal frameworks in which they operate. Investment treaty arbitration is based on a standing offer to arbitrate in a treaty between the states concerning disputes related to the breach of the obligations provided in the treaty. Conversely, international commercial arbitration is based on the consent of the parties (of which one may be a state) typically given in an arbitration clause contained in a contract between the parties for resolving disputes arising out of commercial transactions.

Informed by the foregoing considerations, the discussion in this paper is divided into three sections. The first section lays the conceptual groundwork for the central idea of the paper. Sections 2 and 3 address the two selected themes to be explored through a narrative of hegemony in international commercial arbitration briefly developed in the first section. These two themes, namely the claims on transnationality of commercial arbitration and the concept of epistemic community in international arbitration, have been chosen on account of their potential relevance to the debate on how concepts and practices in international arbitration have been shaped under the hegemony of Western legal traditions.

A Narrative of Hegemony in International Commercial Arbitration

Is commercial arbitration truly apolitical.

There is a tendency to distinguish between economics and politics in commercial arbitration debates. It is commonly believed that arbitration is always about resolution of contract disputes arising from property rights, and therefore apolitical Footnote 3 (Shalakany 2000 ). This is based on the prevailing perception that juxtaposes private law as ‘quintessentially legal, rational, scientific, and individualistic’ (Kennedy 2001 ) with public law as political. Nevertheless, as stated by Cutler, the belief that the settlement of international economic disputes requires a ‘depoliticized’ environment through impartial experts is one of the foundational myths of international commercial arbitration (Claire Cutler 2014 ). Most strikingly, international arbitration, from the outset of its modern history, has been complexly intertwined with political dynamics Footnote 4 and, in particular, has been dealing with North-South relations.

A political economy perspective can bring more light to the distinction between private and public law. Indeed, such distinction, driven immensely by liberalist views, has been influential in camouflaging the process through which private law tools and constructs shape and justify power (Muir Watt 2020 ). Interestingly, the public/private distinction underlaid the outcome of arbitrations in the highly influential oil nationalization cases Footnote 5 in the past century, which were essentially private arbitrations in nature (Lim et al. 2021 ). In these cases, the question of applicable law, which until then had been hardly posed in the context of the north-south economic exchange, was particularly highlighted and incited the development of lex mercatoria (Dezalay and Garth 1996 ). Footnote 6

While the liberalist view considers transnational corporations and their law as apolitical and neutral (Claire Cutler 2003 ), it is arguable that lex mercatoria or transnational merchant law, which is often accompanied by private arbitration, is mistakenly regarded as technical and apolitical. Transnational merchant law and arbitration are intertwined in an effort towards possible dissociation of transnational corporations form judicial policies as implemented by state courts. The notion of modern lex mercatoria is in itself inseparable from its political context, which is the preference for a liberal order of international commerce based on the primacy of the freedom of the individuals (Elcin 2012 ). Modern lex mercatoria is developed by a global meritocracy, which has been defined as ‘an elite association of public and private organizations engaged in the unification and globalization of transnational merchant law’ (Claire Cutler 2003 , pp. 180–181). This expansion of the role of private authority is reinforced with the coercive power and support of political authorities. Nevertheless, the shift towards the authoritative function of the global meritocracy is masked by the liberalist ideology, which defines private as apolitical (Claire Cutler 2003 ).

At a more concrete level, the impact of political factors may also appear in the most technical aspects of commercial arbitration. An illustrative example of how the most practical aspects of arbitration might be affected by non-legal considerations can be found in a 1999 ICC arbitration. This case arose pursuant to the dispute settlement provision in a 1996 contract between an Italian company and Addis Ababa municipality, in which Addis Ababa had been fixed as the place of arbitration. However, under the terms of reference, the arbitral tribunal was empowered to decide to conduct hearings at any other appropriate place after consulting with the parties. While the respondent submitted that the appropriate venue was Addis Ababa, the claimant argued that since the majority of the participants in the hearing were based in Europe, it would be more appropriate to hold the hearing in Paris. The tribunal agreed with the claimant’s position and pointed to the significant travel time from Europe to Addis Ababa and the relative difficulty of coordinating travel arrangements for the non-Ethiopian party, counsel, the arbitrators, and the non-Ethiopian witnesses0. Footnote 7 Viewed in a broader context of African relationship with international arbitration, this decision has been heavily criticized by Kidane: ‘The level of disregard for the African party was such that the tribunal refused to go to the seat of the arbitration, instead choosing to write a 82-page justification from Paris on how the parties granted it the discretion to stay in Paris in the Terms of Reference that they all signed’ (Kidane 2017 , p. 62).

The tribunal’s decision on the venue of proceedings becomes more questionable in view of the fact that the tribunal also delayed its decision on jurisdictional objection for two years. Kidane poses the critical question: ‘[w]as the respondent justified in thinking that the arbitrators were not fair for delaying the jurisdictional decision and refusing to get out of Europe for a hearing?’ ( 2017 , p. 62).

With the benefit of hindsight concerning colonial relations, one might be inclined to revisit the rationale underlying the claims as to the depoliticized nature of international commercial arbitration. Viewing arbitration as an instrument of hegemony might bring some light into the debate.

Arbitration as an Instrument of Hegemony

The rise of commercial arbitration in the contemporary era can be traced back to the mid-twentieth century. From the 1980s, the universalizing logic of arbitration and accelerating economic globalization resulted in the expansion of international commercial arbitration (Nottage 2000 ). While this does not mean that the use of arbitration in resolving international commercial disputes was unprecedented, dynamics and characteristics of commercial arbitration in the past – including the colonization period – are not identical with those of the contemporary.

The history of commercial arbitration is indeed closely related to the political developments such as decolonization, and simultaneous economic changes (Kidane 2017 ). Certain prominent theorists have, in the framework of center-periphery analysis, addressed the question as to how the commercial arbitration regime reinforces the centrality of the North, the private and the economic vis-à-vis a periphery of the South, the public and the political (Kennedy 2014 ). Historically, the contribution of arbitration to such centrality, might be, at least in part, attributed to the changed patterns of economic interactions during the colonial period and incompatibility of those patterns with the customary means of dispute resolution in the colonized territories. These historical dynamics have led some authors to characterize modern arbitration legislation as a colonial legacy Footnote 8 (Asouzu 2004 ).

Until not too long ago, Western powers tended to protect the economic and commercial interests of their nationals through their coercive power (gunboat diplomacy) (Miles 2013 ), and the forced unequal capitulation treaties giving European powers jurisdiction over the activities of their nationals in the non-European states justified by inadequacy of local justice systems (Anghie 2005 ). During the colonial period (and even after independence), the colonies were the suppliers of primary products and raw materials to the metropolitan countries. This led to the expansion of international trade to the benefit of European metropolitan countries. For the most part, the commodity associations and exchanges in these countries closely controlled dispute settlement mechanisms in terms of devising the rules and enforcement of (mostly unreasoned) awards through their internal sanctions (Anghie 2005 ).

After the surge of decolonization post-World War II, the capital exporting states, which had lost their dominance over former colonies to a large extent, could not impose their will in commercial relations with the former colonies in respect of applicable law and national court jurisdictions (Lew 2006 ). This decline of influence created a need in Western powers for protection of economic interests of their nationals abroad (Salacuse 2010 ). In other words, the end of formal colonialism was contingent upon the enforcement of a cross-border capitalist economic order for protection of the interests of Western powers in foreign lands (Haskell 2019 ). Accordingly, the expansion of international commercial arbitration has been attributed, in part, to the inappropriateness of the use of coercive power to protect the economic interests of the nationals of Western states (Sornarajah 1991 ).

The abovementioned historical dynamics can explain how political and economic conflicts between the North and South have been translated into business conflicts capable of being managed by international commercial arbitration (Dezalay and Garth 1996 ). The historic oil arbitrations of the last century are a prominent illustration of this point. These influential oil nationalization disputes mark the commencement of the blossoming of international commercial arbitration. Footnote 9 Metaphorically, such arbitrations have been depicted as the opposition of the North and South, multinationals and third-world states, encompassing political stances and private commercial interests (Dezalay and Garth 1996 ).

International arbitration was employed in these oil conflicts as an intermediary to develop ideas based on which contracts entered into between private parties and states were detached from the realm of domestic laws. Notably, arbitral rules and procedures were also imposed and inspired by Western legal cultures. This process was in essence an attempt to legalize political and economic conflicts. Footnote 10 Such a transforming process might be considered as an influential strategy consciously adopted by the Western powers at the time to continue to maintain the hegemony over former colonies and developing countries. Extrapolating the broader context of North-South economic and political relations to the international arbitration can be seen as a continuation and revival of commercial relations between the nationals of metropolitan countries and former colonies in the colonization periods. The major difference between the two periods stems from the fact that decolonization and subsequent abolishment of the capitulation mechanisms no longer allowed the nationals of colonizing powers to dominate the commercial relations by the same instruments.

By the same token, Dezalay and Garth ( 1996 ) attribute the legitimacy of transnational legal order to the setting of a legal scene which revolves around the North-South conflict. Simply put, the transnational legal order is based on the opposition between dominated and established interests. Such an opposition was manifested in the third world countries’ effort to exercise sovereignty over natural resources and thus undermining multinationals’ concessions. The opposition served to produce efforts as to the development of legal rules and practices related to the north-south economic disputes accompanied by efforts directed at the universality of law– lex mercatoria (Dezalay and Garth 1996 ). Beyond the renowned oil arbitrations, arbitration was also an intermediary for a new commercial order Footnote 11 (Dezalay and Garth 1996 ) involving capital exporting and developing states, which juxtaposed North and South. This was (and to a large degree has been) for decades the major pattern of economic relations in the world.

The foregoing analysis is linked to the broader relationship between international law and world power structures. Hegemonic accounts of law are by no means unprecedented in the international law scholarship. Martti Koskenniemi, a prominent international law scholar, has exquisitely depicted the process in which international law appears through the positions of political actors. Such a process takes place through articulating political preferences into legal claims, in the conditions of hegemonic contestation, namely invoking legal rules to which they have ascribed meanings that challenge the contestant view (Koskenniemi 2004 ). It can be argued that shifting to international commercial arbitration as a system swinging between domestic and international legal environment for the settlement of private commercial disputes, is susceptible to be seen as an imposition of Western powers’ own preferences as the total (universal) view Footnote 12 through a hegemonic contestation and legalization. Furthermore, having in mind the developments leading to the initial blooming of international commercial arbitration, the rise of arbitration resulting from the wave of petroleum disputes may also be understood in Gramscian terms. According to the latter, the concept of hegemony describes a condition in which the supremacy of a social group is achieved not only by physical force but also through consensual submission of the very people who were dominated (Litowitz 2000 ).

It is, therefore, arguable that depoliticization of deeply political questions and transposing them into purely technical legal fields has been a scheme constantly employed in commercial and investment arbitration. Indeed, international commercial arbitration –mainly inspired by the Western legal cultures– could be an ideal venue for the time when the use of coercive power was no longer practicable. In principle, designing the structure and function of an international system of private dispute resolution as well as manipulation of legal rules and institutions to the satisfaction of own benefits and objectives is much easier for the main players and stakeholders of the system.

Nevertheless, many commentators claim that bias against the developing countries is not the case anymore; the colonial period has gone, and arbitrations are taking place in many non-European or US venues (Paulsson 1987 ; Lew 2006 ). A hegemonic account of international arbitration casts doubts on such assertions. Having set the scene in that way, we will now turn to the more specific manifestations of hegemony in international commercial arbitration with reference to the two interconnected issues which have been lately the subject of renewed interest: transnationality and epistemic community.

Commercial Arbitration and Claims of Transnationality

Transnational law discourse and arbitration.

Within the context of legal pluralism, the transnational law discourse has been largely widespread with an abundance of academic literature surrounding it. Transnational law in the contemporary age is widely known to have been first proposed by the US international lawyer, Philip Jessup, to include all law regulating cross-border actions or events (Vagts et al. 2014 ). The main directions in theorizing transnational law have been summarized as follows: the mainstream direction comprises a network of treaty bodies, governments, and international lobbying; the second direction adopts a socio-legal and critical approach that understands law as a phenomenon in transnational settings; the third direction benefits from comparative legal studies (Baer 2011 ).

In recent decades, a new lease on life has been given to transnational commercial arbitration in the legal scholarship. The Dijon School of thought, which embraced prominent scholars such as Berthold Goldman, Philippe Kahn, and Philippe Fouchard has been known as the starting point for the discourse on the transnational arbitration regime (Schultz 2011a ). A leading figure in the more recent revival of transnational arbitration debates was Emmanuel Gaillard. Gaillard ( 2010 ; 2020) proposed three distinct structuring representations of international arbitration. The first assimilates an international arbitrator to a judge acting within a single national legal system (monolocal approach). The second relates arbitration to a plurality of national systems which recognize the arbitral award (the Westphalian model). Finally, the third representation, of which he was a strong adherent, attributes the juridicity of the arbitration to a transnational legal order as opposed to national legal orders. In support of the transnational approach, reference has been made, for instance, to the strong perception among arbitrators that they do not exercise a judicial mandate on behalf of any national system, but rather a judicial role benefiting the international community (Gaillard 2010 ). Nevertheless, Gaillard ( 2020a , p. 558) goes on to clarify that ‘the existence of an arbitral legal order does not imply that national legal orders play no role in international arbitration. In fact, the existence of an arbitral legal order relies on the notion that the laws of various states, when considered collectively, make up the common rules of arbitration law in which the source of the arbitrators’ power to adjudicate is rooted’. More specifically, transnational law has been considered capable of being the law applicable to the arbitral procedure, merits of the dispute, and as criteria for defining public policy (Gaillard 2020a ).

When it comes to the arbitral procedure and the interaction between national courts and arbitration, the adoption of UNCITRAL Model Law on International Commercial Arbitration by many jurisdictions has been considered as a dynamic contribution to the transnational commercial arbitration (Gaillard 1995 ). In addition, the New York Convention has been recognized as ‘the normative, collective activity of the States in which the legitimacy and validity of the transnational arbitral legal order is anchored’ (Gaillard 2012 , p. 73).

Regarding the merits of the disputes, it has been pointed out that arbitrators believe that their awards will be more persuasive if they are based on non-state law (DeLy 1998 ). Some authors speak of growing reference by arbitration tribunals to transnational law instead of national law and cite cases in which arbitral awards applying transnational law have been upheld (Ali 2020 ). Similarly, when it comes to public policy exception, it has been argued that arbitrators are only bound by transnational public policy since they have no forum and are not held to allegiance to any state’s public policy (Gaillard 2010 ).

It has been proposed that establishing the content of transnational rules requires the systematic use of comparative law resource (Gaillard 2020b ). According to Gaillard, by engaging in a comparative law analysis, arbitrators seek to find points of convergence in different national laws and ultimately ‘ascertain the existence of a broad consensus among States on the content of a specific rule’ ( 2020b , p. 17). Gaillard attempted to respond to the critiques as to the vagueness or incompleteness of this method: ‘[i]f the analysis of comparative law has not already been carried out, it must be undertaken by counsel, a task that is no more arduous than, say, researching the content of various national laws connected to a dispute’ ( 1995 , p. 226). Nevertheless, this position does not seem to fully dispel the critiques since comparative law might be best understood as a scientific endeavor not particularly directed at identifying concrete solutions to questions of law in real life disputes.

There is an abundance of literature on the use of comparative law in arbitration (Bell 2021 ; Gaillard 2020b ; Karton 2020 ), and some comparatists consider developing common solutions using comparative law method as one of the purposes of comparative law (Siems 2018 ). A recent empirical study focusing on the use of comparative law methods by arbitral tribunals in a small sample of publicly available arbitration awards confirms that the use of comparative law by arbitrators is indeed outcome determinative (Bergolla and Goertz 2020 ). Nevertheless, this study suggests that arbitrators are not rigorous users of comparative law methodology in the classic sense. Rather, they either refer to other arbitral, international, and national cases, or engage in comparative law analysis to determine the substantive law applicable in the absence of the parties’ choice (Bergolla and Goertz 2020 ). Despite the discussion on the prevalent modality of the use of comparative law in international arbitration far from being settled, comparative law has been described as the ‘ethos of the field’, ‘a core aspect of [arbitral] professional culture’ (Karton 2020 , p. 295), ‘a common culture among arbitrators’, and ‘deeply ingrained in modern arbitral practice’ (Gaillard 2020b , p. 35).

Transnationality Claim Viewed in Hegemony Perspective

Conspicuously, TWAIL views international law as a universalization project in order to naturalize the existing order (Knox 2019 ) particularly by maintaining a dichotomy between civilized and universal on one hand, and uncivilized and particular on the other (Anghie 2005 ). As previously pointed out, in Gramscian terms, the formation of a dominant view requires universalization, naturalization, and rationalization through which a dominant group reflects its interests as the common interests. In the same manner, a process of rationalization, universalization, and naturalization must be undertaken in order to exhibit international commercial arbitration laws and practices as ‘common sense’ serving public purposes. Such undertaking of rationalization is performed by the international commercial arbitration community of arbitration lawyers, judges, multinational law firms, and related professionals who promote international commercial arbitration as a public good benefiting the world community (Claire Cutler 2014 ). This process is indeed an integral dimension of the constitution of hegemony through the apparent transformation of the private enforcement of commercial agreements into a matter of public interest and responsibility.

Justifying the promotion of international commercial arbitration as necessary in the age of proliferation of trade and investment relations has made it easier for the international commercial arbitration community to make the arbitration system self-contained to the extent possible, and more and more detached from national legal systems. For this purpose, a trend was started to modernize the national laws on international commercial arbitration. Before that, states’ accession to the New York Convention was encouraged to the extent that it has turned into a success story in international unification of law.

The concept of transnational legal order, like any other law, is constituted by power and reason, and it is also applied through both coercion and a normativity grounded in legal reasoning and process. Accordingly, the actor’s ideal law would reflect their perception of their interest and normative goals. Viewed from this perspective, US and European legal cultures would constitute the main inspiration of the content of transnational law (Halliday and Shaffer 2015 ). In a similar vein, it has been argued that ‘the so-called lex mercatoria Footnote 13 is largely an effort to legitimize as ‘law’ the economic interests of Western corporations’ (Toope 1990 , p. 96). This is in line with a defining characteristic of the TWAIL scholarship which heavily criticizes law making and formation of international law as well as its hierarchical nature. Most strikingly, according to the TWAIL, identification of customary international law is mostly driven by state practice of advanced capitalist nations and the opinions of their scholars (Chimni 2018 ). A similar line of reasoning can be developed with regard to the formation and development of lex mercatoria.

While power and reason are in a constant tension in every legal system (Halliday and Shaffer 2015 ) the modality of such interaction might be contentious with regard to the allegedly existing transnational law and transnational arbitration systems: dynamics of transnational law and arbitration are mostly driven by Western hegemonic power. The comparative law analysis method, which was proposed as a technique to apply transnational substantive rules, is prone to be based on implied superiority of the global North. Conventional comparative law, which originated from Europe around the nineteenth century, mainly employs the law of the global North as the benchmark (Salaymeh and Michaels 2022 ). Consequently, it has been argued that the discipline of comparative law is historically intertwined with colonialism and has been largely employed in pursuit of Western imperialist agendas (Salaymeh and Michaels 2022 , p. 169; Amoo 2018 , p. 318). This context leaves questions as to the adequacy of such a paradigm for our globalized world.

Part of the process of formation of transnational norms, in keeping with the Gramscian concept of hegemony, involves rationalization, universalization, and naturalization. With respect to international commercial arbitration, such a process has always taken place through a constant relationship of learning and teaching:

‘[t]heoretical origin and development of contemporary international arbitration, like most principles of law, has its roots in the dominant Western legal traditions. Western laws and institutions have a long history of transplantation into other societies around the world. The rest of the world has always been in a constant state of learning Western law, and the Western world has constantly been teaching the law. For better or worse, the teacher-student relationship did not end along with colonialism. This hierarchical relationship created the illusion of not only the superiority of the mechanics of dispute settlement, but also justified the economic class of elite arbitrators who do not lack the theoretical sophistry to justify their privileged position’ (Kidane 2017 , p. 287).

Apart from the doubts as to the content of transnational law as the law applicable to the substance of the dispute, prevailing practices and rule making efforts with regard to procedure in international arbitration might also be called into question. Since the 1980 and 1990 s, international commercial arbitration has been to a large extent monopolized by big Anglo-American law firms (Moreno Rodríguez 2018 ). This has led to a phenomenon known as ‘technocratization of arbitration’, which also entails increasing judicialization with a particular emphasis on Anglo-American devices of procedural management (Dezalay and Garth 1996 ; Moreno Rodríguez 2018 ). The general predominance of common law procedural tools in international commercial arbitral practice (Ferreres Comella 2021 ) is accompanied by the specific dominance of American style procedure in rules of evidence. It has been observed that a revolutionary transformation has taken place in the past decades in the context of taking of evidence in international arbitration which requires practitioners to ‘master fundamental precepts of US common law discovery’ (Martinez-Fraga 2009 ). While some authors speak of the development of a standard arbitration procedure as a set of arbitral rules having the merit of merging different procedural cultures (Koffmann-Kohler 2003 ), an American commentator, despite noting that Americanization of arbitral procedure is ‘too much to claim’, observes that:

‘the trend in international arbitration is to move towards the American style of litigation. For example, procedural disputes have multiplied, jurisdictional objections are common, and cross-examination is prevalent. While American style discovery remains anathema, the limited discovery procedure discussed in Article 3 of the International Bar Association Rules of Evidence has become commonplace. International commercial arbitrations also permit the interviewing of witnesses, which was traditionally considered unethical. Furthermore, there are many additional procedural issues that have been introduced by American lawyers into international commercial arbitration in recent years’ (Bergsten 2006 , p. 301).

Epistemic Community in Commercial Arbitration

The concept of epistemic community.

The concept of epistemic community was first developed in international relations (Haas 2008 ) and refers to ‘a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area’ (Haas 1992 , p. 3). Members of such–often transnational–communities share a common set of normative beliefs and enjoy an authoritative claim to policy-relevant knowledge within their field (Haas 2008 ). The distinctive traits of epistemic communities from other types of groups active in policy making are in particular ‘the socialized truth tests and common causal beliefs’ (Haas 2008 ). The existence of such internal criteria for validating knowledge provides epistemic communities with a reputation for impartial expertise (Bianchi 2020 ).

A Critique of Epistemic Community in International Commercial Arbitration

As one of the main tenets of the TWAIL, knowledge production in international law has been called into question. ‘Since TWIAL aims at challenging the hegemonic structures, it must also do so regarding the production of knowledge itself and challenge where and how knowledge is produced and valued’ (Justin Bendel 2021 , p. 411). Knowledge production and practice shaping in international commercial arbitration may be viewed along similar lines. The international community of arbitral scholars and practitioners has been characterized as an epistemic community (Dezalay and Garth 1996 ; Lynch 2003 ; Kidane 2017 ). This concept can be employed to explain the control over and dissemination of knowledge and information (Lynch 2003 ) within the field of international commercial arbitration.

Significantly, the scholars of the field of origin of the concept of epistemic community have put forward that this community ‘should not be mistaken for a new hegemonic actor that is the source of political and moral direction in society. Epistemic communities are not in the business of controlling societies; what they control is international problems. Their approach is instrumental, and their life is limited to the time and space defined by the problem and its solutions’ (Adler and Peter Haas 1992 , p. 371). It is indeed questionable whether the epistemic community of international arbitration has remained within this defined scope of activity.

The epistemic community in international commercial arbitration is said to be originally composed of mostly European academics, judges and barristers, who could act as arbitrators due to their high statuses (Dezalay and Garth 1996 ; Lynch 2003 ). Notably, Dezalay and Garth ( 1996 ) borrow the concept of ‘symbolic capital’ from Bourdieu to explain the significance of elements such as career path, expertise, social class and education in the market for international commercial arbitration.

It has been argued that the professional community of arbitrators has gradually gained authority through promoting treaties on enforcement of commercial arbitral awards and thereby, commercial interests of multinationals have secured greater representation in arbitral proceedings, and at the same time, national judiciaries have been disempowered (Kennedy 2018 ). Some scholars point out that powerful transnational businesses have circumvented the states’ coercive powers through transformation of the law enforcement mechanisms, for instance by the use of arbitration to scrutinize the states exercise of regulatory power (Pistor 2019 ). Pistor (2019) mentions New York Convention, the 1966 Washington Convention (ICSID), and the interpretative tools contained in the 1969 Vienna Convention on the Law of Treaties Footnote 14 as the pieces of the puzzle of such transformation of law enforcement mechanisms. Indeed, as a global community with a particular interest and expertise in legitimating arbitration, the arbitration community has shaped its social rules and norms. These community-specific norms guide the behavior of the members of the group in carrying out their tasks. One prominent example of such a process is the development of common interpretive policies which influence the meaning and application of legal rules (Schultz 2011b ).

More specifically, the participants in the epistemic community have been able to influence policy making in international commercial arbitration at national and international levels (Lynch 2003 ). Using the terminology of Katharina Pistor ( 2019 , p. 162), these legal experts are ‘the masters of the code’ who ‘actively fashion new law’ and they are ‘central to the coding of capital and distribution of wealth in society’. The masters of the code, regardless of their ethnic background, are often trained at Western elite law schools and are later employed by top law firms (Pistor 2019 ). Indeed, despite attempts to address ethnic and gender diversity of key players in international arbitration, teaching and training in international arbitration law is predominantly shaped by a Western outlook. Footnote 15

Furthermore, many of these experts employ scholarly work as a channel of learning and communication, which makes their role as the value providers of the social field of arbitration even more explicit (Schultz and Niccolò Ridi 2020 ). These players have a clear collective interest in the protection of the industry of arbitration. This collective interest creates incentives for producing studies that protect the status quo or advocate the expansion of the field.

The phenomenon of the epistemic community of arbitration and its authority is closely linked to the transnational law discourse in arbitration. In arbitration a special recognition and value is given to those who adhere to the universality of law (Dezalay and Garth 1996 ). Specifically, the development of transnational norms is mainly furthered and advocated by the recognized community of scholars and practitioners of arbitration. Certainly not to be overlooked is the authority attached to the label of transnational law. By granting the status of ‘law’ to a subset of norms, we empower certain individuals and institutions as law makers and thus redistribute political power (Schultz 2014 ). Simply put, characterization of a regime as law results in the superiority of the normative power of the chosen regime over all other social or moral norms. Affixing the label of law to certain norms in the legal academic discourse, can orient practical behavior and ultimately translate into real power for those who generate norms to be regarded as law (Schultz 2017 ). Significantly, theorizing about transnational law in arbitration can be used to advance the interests of the epistemic community in the protection of the industry of arbitration, which in turn is arguably tied to the interests of the global capital market.

Historical and contemporary world power structures cannot be overlooked in critical studies of international arbitration. This paper has sought to demonstrate that while international commercial arbitration is commonly viewed as a meeting point and place of convergence for different legal cultures, Western hegemony is deeply ingrained in its formation and development.

Although discussions regarding gender and ethnic diversity in arbitration have dominated research in recent years, the historical roots of international commercial arbitration in colonialism and imperialism and its relationship with lack of diversity of the actors in this field have remained relatively unexplored. Yet the recognition of Western hegemony embedded in modern international commercial arbitration serves as a first step towards enhancing inclusivity and sustainable diversity in this field. Sustainable diversity of international commercial arbitration presupposes the identification and embracing of all potential actors and legal cultures. This concept underpins the acceptability of commercial arbitration as a central element of the legal order of contemporary global governance. Such centrality would be faced with legitimacy challenges if marginalized cultures and actors continue to be overlooked through a hegemonized construction of the legal order of global governance.

We posit that any effective attempt at redefining or reforming arbitral governance structure requires an understanding of the hegemonic account of arbitration with the aim of sustaining diversity in international arbitration. Particularly, in a field of law where prominent theorists are often also practitioners, it is crucial to revisit, from a Third World perspective, the historical and political power structures that reinforce the status que of the field. For this purpose, two of the main theoretical components of the international commercial arbitration literature, which also carry practical implications, were critically explored. More specifically, an inquiry into the influence of hegemony of Western legal cultures and communities was the focus of the exploration of transnational authority and epistemic community of arbitration.

There is a persuasive argument that the transnational authority of arbitration has been shaped and developed under the hegemony of Western legal traditions. Further, both the demographics of the epistemic community of arbitration and their normative convictions reinforce this hegemony. As a result, even parties from developing countries often have a preference for counsel and arbitrators from Western countries. A corollary to these observations is that revisiting the transnationality and epistemic community of commercial arbitration and envisaging the prospects for dehegemonization is essential in the future perspective of the agenda of debates on sustainable diversity in international commercial arbitration.

Indeed, dehegominizing international commercial arbitration requires a concerted effort from a range of stakeholders, including governments, arbitral institutions, and legal practitioners to promote greater inclusivity for a diverse range of legal traditions and cultures. For instance, growing engagement from the global South through regional arbitral institutions and participation in soft law design can provide a counter-balance to the current hegemonic position of international commercial arbitration. In addition, leading textbooks and treatises written from the perspective of underheard legal systems in international commercial arbitration literature may also contribute to challenging the monopoly of prevalent national legal systems in international arbitral procedures and practice.

In conclusion, this article is a starting point, rather than an endpoint, for rethinking the discipline of international commercial arbitration through the TWAIL perspective. We admittedly do not claim that the current regime of international commercial arbitration as a means of global governance must be wholly transformed. This paper is rather an attempt to call for further inquiry into the subject in order to identify and substantiate the potentials for reform, and consequently remedy the grounds upon which the existing order of the international arbitration has been premised, with the prospect of furthering sustainable diversity in international arbitration.

Change history

04 august 2023.

In the original publication of the article, “(Pistor 2019). Pistor (2019)” was converted to “(Pistor 2019)”.

On the influence of colonial arbitration laws on Southeast Asia see: (Schaefer 2000 ).

For example, in Africa, there was a long-standing tradition of customary arbitration, which had been largely marginalized by colonization (Kidane 2017 ; Asouzu 2004 ). Arbitration-like structures were also used among Parsis in India during the colonization period. (Sharafi 2014 ).

Rejecting the institutional bias (namely configuration of arbitration to the satisfaction of economic interests of the North) and doctrinal bias (namely applicable law configuration), Shalakany ( 2000 ) observes that disciplinary bias accounts for favoring economic interests of the North in arbitrations (particularly those involving state contracts between North and South) through a public-private distinction and apolitical representation of the private sphere coupled with the depoliticization of contract law.

The colonial period has been highlighted in the recorded history of commercial arbitration in many parts of the world, e.g. Africa and Asia, through the import of the use of commercial arbitration by Europeans into the colonized regions or otherwise (Born 2020 ).

Oil nationalization cases generally refer to cases in which interests and assets Westen petroleum companies had acquired pursuant to concession agreements were nationalized by the sovereign party subsequent to which, petroleum companies resorted to arbitration agreements in those concession agreements.

See 1.b below.

Salini Costruttori S.P.A. v. The Federal Democratic Republic of Ethiopia, Addis Ababa Water and Sewerage Authority, ICC Case No. 10,623/AER/ACS, paras 48–49, 6.

This was a consequence of exporting laws in different forms from colonizing States to colonized countries. ‘Imperialism was not only about military conquest, but also about spreading the legal system of the European States to the colonies they created in Africa, Asia, and the Americas.’ (Pistor 2019 ).

Dezalay and Garth ( 1996 ) argue that ‘the petroleum disputes were founding acts. They made arbitration known and recognized. The importance of financial, political (the definition of colonial relations), and legal (the relationship between sovereignty and the respect of contractual obligations) stakes incited a certain number of important actors from the legal field (high judges, noted practitioners and academics, leading law firms) to become interested and to invest in this mode of dispute resolution. The efforts and intellectual activity that they deployed for resolving these new, exceptional conflicts in a legal manner served to construct the minimum base of knowledge necessary to build a field of practice.’

Dezalay and Garth ( 1996 ) also observe the process of translating the economic conflicts to arbitration as a gradual legalization.

As a significant component of the new commercial order, arbitration facilitated the trade between East and West because domestic courts of each side were not trusted by the other side (Hale 2015 ).

This is also in line with the Gramscian perspective under which, ‘the establishment of a ruling worldview requires the mechanisms of universalization, naturalization, and rationalization. By universalism, the dominant group manages to portray its parochial interests and obsessions as the common interests of all people.’ (Litowitz 2000 ).

The term lex mercatoria has been used interchangeably with transnational rules. However, it has been suggested that the concept of lex mercatoria emphasizes on the content of these rules by suggesting that these rules are specifically tailored to the merchant community. The term ‘transnational rules’, on the other hand, focuses on the sources of these rules and implies that such rules originate from national law systems (Gaillard 1995 ).

Mainly, Pistor ( 2019 ) points to the provision of Article 27 of the Vienna Convention according to which, a state may not invoke the provisions of its law as justification for its failure to perform a treaty.

In his study of arbitration through the prism of sociology, Emmanuel Gaillard ( 2015 ) sketches different social actors within the field of arbitration. Value providers are a category of actors that provide guidance as to the development of the field. Among the value providers are professional and academic institutions. Most of these institutions are based in Europe and North America.

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Vesali Mahmoud, M., Sheikhattar, H. A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community. Law Critique (2023). https://doi.org/10.1007/s10978-023-09344-7

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Below are quick links to some of our most popular resources for arbitration research.

• Global Arbitration Review 100 (print edition, includes the GAR 100 and GAR 30 lists, shelved in the reading room
• International Commercial Arbitration (Gary Born) (Treatise)
• Investment Arbitration Reporter (Subscription Database)
• Investor-State Law Guide (Subscription Database)
• Jus Mundi (Subscription Database)
• KluwerArbitration (Subscription Database)
• Oxford Legal Research Library: International Commercial Arbitration (Subscription Database)
• Redfern and Hunter on International Arbitration (Treatise)

Below are links to information about words or phrases that often appear in the arbitration literature.  Terms listed include those used in the following types of arbitration, both of which are covered in this guide: 

• Investment arbitration:  resolving a dispute between a private investor and a state
• Commercial arbitration:  resolving a dispute between two private parties that have entered into a commercial contract with each other

A variety of types of sources are linked to, including legal dictionaries, introductory treatises, and official websites of relevant organizations.

• Arbitration
• Arbitration Agreement
• Arbitration Clause
• Bilateral Investment Treaty (BIT)
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) (1958)
• International Center for Settlement of Investment Disputes (ICSID)
• International Institute for the Unification of Private Law (UNIDROIT)
• Investment Treaty
• Investment Treaty Law
• United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna, 1980)
• United States Commission on International Trade Law (UNCITRAL)

Using the Harvard Library Catalog, HOLLIS, for Arbitration Research

Access to all sources listed in this guide is available through the HOLLIS library catalog at  https://hollis.harvard.edu , which you can use to search for books, journal articles, and more.  Limit search results by resource type, library location, and more using the options on the right side of the search results screen.

Searching HOLLIS

Below is a list of pre-populated HOLLIS searches that are relevant for international arbitration research.  Click a link to view its search results in HOLLIS.  Note that most of these searches are very broad, so you will probably want to limit the search results by date, additional keywords, or other options.

• HOLLIS search: Keyword anywhere = "friendship, commerce, and navigation"
• HOLLIS search: Keyword anywhere = "investment arbitration"
• HOLLIS search: Keyword anywhere = "investment treaty arbitration"
• HOLLIS search: Keyword anywhere = "investor-state dispute"
• HOLLIS Search: Keyword anywhere = "trade arbitration"
• HOLLIS search: Keywords anywhere = "international investment law" AND "arbitration"
• HOLLIS search: Subject = "Agreement on Trade-Related Aspects of Intellectual Property Rights" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "arbitration act"
• HOLLIS search: Subject = "arbitration" AND Keyword anywhere = "confidentiality"
• HOLLIS search: Subject = "arbitration (international law)"
• HOLLIS search: Subject = "arbitration, industrial"
• HOLLIS search: Subject = "arbitration agreements"
• HOLLIS search: Subject = "arbitration and award"
• HOLLIS search: Subject = "CISG" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "commerce" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "commercial arbitration"
• HOLLIS search: Subject = "commercial courts -- rules and practice"
• HOLLIS search: Subject = "commercial treaties" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "Conflict of Laws -- Arbitration and Award"
• HOLLIS search: Subject = "dispute resolution (law)" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "foreign trade regulation" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "General Agreement and Tariffs and Trade" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "ICSID" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "intellectual property" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international chamber of commerce" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international commercial arbitration"
• HOLLIS Search: Subject = "international disputes" AND Keyword Anywhere = "arbitration"
• HOLLIS search: Subject = "international law" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international sales law"
• HOLLIS search: Subject = "international trade law" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "investments, foreign" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "jurisdiction (international law)" AND Keyword Anywhere = "arbitration"
• HOLLIS search: Subject = "parallel proceedings (law)"
• HOLLIS search: Subject = "UNCITRAL" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "Willem C. Vis International Commercial Arbitration Moot"
• HOLLIS search: Subject = "World Trade Organization" AND Keyword anywhere = "arbitration"

Browsing Materials in HOLLIS by Library of Congress Call Number

Books in our library are organized on the shelves by subject and classified according to the Library of Congress call number system.  Under this system, all books that are primarily about law have a call number that starts with the letter "K."  If the book is mainly about international arbitration, then its call number will begin with "K2400."

In HOLLIS, you can browse books by call number.  Click the link below to browse the K2400 books in HOLLIS.

HOLLIS call number browse: K2400​

Using HOLLIS to Find Papers on Arbitration Written by HLS LLM and SJD Students

To view a list of papers on the topic of arbitration in the library's collection written by HLS LLM and SJD students, click the link below to run the appropriate search in HOLLIS:

Title = "Harvard Law School Thesis" AND Keywords anywhere = "arbitration"

Subscription Databases for Arbitration Research

Below is a list of subscription databases that are helpful for arbitration research, organized alphabetically. For each database, a link to its HOLLIS record, which include a link to its Harvard-specific URL, is provided, along with a brief description of its content.

• Global Arbitration Review (GAR) "International journal of public and private arbitration."
• HeinOnline HeinOnline provides comprehensive coverage of more than 2,600 law-related periodicals. It also contains materials related to treaties, constitutions, case law, world trials, classic treatises, international trade, foreign relations, and more.
• Investment Arbitration Reporter (IAReporter) Investment Arbitration Reporter is a news & analysis service tracking international arbitrations between foreign investors and sovereign governments.
• Investor-State Law Guide Investor-State Law Guide provides access to all materials relevant to publicly available ICSID, NAFTA and ad hoc tribunal decisions. Note that you may experience access problems for this database if you are using a Google Chrome browser.
• Jus Mundi Search engine for international law and arbitration -- includes extensive database of arbitral awards and citator functionality.
• KluwerArbitration KluwerArbitration is the world's leading online resource for international arbitration research. It contains a wealth of commentary from expert authors and an extensive collection of primary source materials, including ICC materials.
• Oxford Reports on International Law Includes two modules: International Law in the EU Courts and International Trade Law Decisions.
• Westlaw In the search box on the Westlaw homepage, type "International Arbitration Materials" and select the corresponding link when it comes up in the drop-down menu. Content: cases, awards, rules, conventions, legislation, model laws, guides, model clauses, treatises, journals, and current awareness.
• WorldTradeLaw.net Provides summary and analysis of all WTO reports and arbitrations; a current keyword index; a database of dispute settlement tables and statistics; and a user-friendly search tool for WTO cases, legal texts, and other documents.

General Arbitration Research: Books/Treatises

Below are selected secondary sources that discuss international arbitration in general. They may provide a good basic overview for your research.

• The Complete (But Unofficial) Guide to the Willem C. Vis International Commercial Arbitration Moot by Jörg Risse Publication Date: 2015 (3rd ed.)
• The Culture of International Arbitration by Won L. Kidane Publication Date: 2017
• Domke on Commercial Arbitration by Martin Domke Publication Date: 2003-
• The Evolution of International Arbitration: Judicialization, Governance, Legitimacy by Alec Stone Sweet and Florian Grisel Publication Date: 2017
• Foreign Investment Law Including Investor-State Arbitrations in a Nutshell by Ralph H. Folsom Publication Date: 2022
• The Functions of Arbitral Institutions by Remy Gerbay Publication Date: 2016
• International Arbitration: A Practical Guide by Stuart Dutson Publication Date: 2019 (2nd ed.)
• International Arbitration: Law and Practice by Gary Born Publication Date: 2016 (2nd ed.)
• International Commercial Arbitration by Gary Born Publication Date: 2014 (2nd ed.)
• International Commercial Arbitration: A Transnational Perspective by Tibor Varady et al. Publication Date: 2019 (7th ed.)
• International Commercial Arbitration: International Conventions, Country Reports, and Comparative Analysis by Stephan Balthasar (ed.) Publication Date: 2016
• International Investment Arbitration: Substantive Principles by Campbell McLachlan Publication Date: 2017 (2nd ed.)
• International Investment Law and Arbitration: History, Modern Practice, and Future Prospects by Borzu Sabahi, Ian A. Laird, and Giovanna E. Gismondi Publication Date: 2018
• National Arbitration Laws by Loukas Mistelis, Laurence Shore, general editors ; Hans Smit, founding editor. Publication Date: 2010 (2nd ed., looseleaf)
• The Principles and Practice of International Commercial Arbitration by Margaret L. Moses Publication Date: 2017 (3rd ed.)
• Private International Law and Arbitration (v. 1) by Jack J. Coe, Jr. and Donald Earl Childress (eds.) Publication Date: 2018
• Redfern and Hunter on International Commercial Arbitration by Nigel Blackaby Publication Date: 2015 (6th ed.) Note: This is also available as an eBook through KluwerArbitration. .
• UCIA -- Universal Citation in International Arbitration by Stephen Anway et al. (eds.) Publication Date: 2023 (2nd ed.)
• The World Arbitration Reporter: International Encyclopedia of Arbitration Law and Practice by Loukas Mistelis, Laurence Shore, general editors ; Hans Smit, founding editor Publication Date: 2010- (Looseleaf)

Arbitration Book Series

Academic publishers sometimes issue a series of books about a particular subject, and there are a few series devoted to arbitration.  To search HOLLIS by series title, click its corresponding link below.

• Arbitration in Context (Kluwer)
• International Arbitration Law Library (Kluwer)
• International Commerce and Arbitration (Eleven)
• International Courts and Tribunals Series (Oxford)
• Lloyd's Arbitration Law Library (Routledge)
• Oxford International Arbitration Series

Selected Topics in Arbitration: Books/Treatises

• Addressing Corruption Allegations in International Arbitration by Brody K. Greenwald and Jennifer A. Ivers. Publication Date: 2019
• Arbitration and Contract Law: Common Law Perspectives by Neil Andrews Publication Date: 2016
• Arbitration in the Digital Age: The Brave New World of Arbitration by Maud Piers & Christina Aschauer (eds.) Publication Date: 2018
• The CISG Advisory Council Opinions by Ingeborg Schwenzer (ed.) Publication Date: 2017
• Contributory Fault and Investor Misconduct in Investment Arbitration by Martin Jarrett Publication Date: 2019
• Cross-Examination in International Arbitration: Nine Basic Principles by Kaj Hober Publication Date: 2014
• Fair and Equitable Treatment: Its Interaction with the Minimum Standard and its Customary Status by Patrick Dumberry Publication Date: 2018
• Good Faith in International Investment Arbitration by Emily Siporski Publication Date: 2019
• Guerrilla Tactics in International Arbitration by Günther J. Horvath, Stephan Wilske (eds.) Publication Date: 2013
• The Guide to Challenging and Enforcing Arbitration Awards by J William Rowley (ed.) Publication Date: 2019
• The Guide to Damages in International Arbitration by John A. Trenor Publication Date: 2018 (3rd ed.)
• Hardship and Force Majeure in International Commercial Contracts: Dealing with Unforeseen Events in a Changing World by Fabio Bortolotti; Dorothy Ufot Publication Date: 2019 Note: This is also available as an eBook through KluwerArbitration. .
• Injunctive Relief and International Arbitration by Hakeem Seriki Publication Date: 2015
• International Arbitration and Forum Selection Agreements: Drafting and Enforcing by Gary Born Publication Date: 2016 (5th ed.)
• Interpretation of Contracts in Comparative and Uniform Law by Ahmet Cemil Yıldırım Publication Date: 2019 Note: This is also available as an eBook through KluwerArbitration. .
• Jurisdiction, Admissibility, and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles by Neil Kaplan & Michael Moser (eds.) Publication Date: 2018 Note: This is also available as an eBook through KluwerArbitration.
• Party-Appointed Arbitrators in International Commercial Arbitration by Alfonso Gomez-Acebo Publication Date: 2016 Note: This is also available as an eBook through KluwerArbitration. .
• Pleading in Arbitration: A Practitioner's Guide by Steven Walker and Iain K. Clark Publication Date: 2017
• The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer by Patricia Shaughnessy, Sherlin Tung (eds.) Publication Date: 2017
• Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standard of Proof by Kabir Duggal, Wendy W. Cai. Publication Date: 2019
• Procedure Shopping through Hybrid Arbitration Agreements: Considerations on Party Autonomy in Institutional International Arbitration by Nathalie Lendermann Publication Date: 2018
• Protection of Legitimate Expectations in Investment Treaty Arbitration: A Theory of Detrimental Reliance by Teerawat Wongkaew Publication Date: 2019
• Rules of Evidence in International Arbitration: An Annotated Guide by Nathan D. O'Malley Publication Date: 2019 (2nd ed.)
• Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified by Steffen Hindelang and Markus Krajewski Publication Date: 2016
• The Use of Economics in International Trade and Investment Disputes by Marion Jansen, Joost Pauwelyn and Theresa Carpenter (eds.) Publication Date: 2017
• What Counsel in Arbitration Can Do, Must Do, or Must Not Do by Vanessa Foncke et al. (eds.) Publication Date: 2015

Arbitration in the International Legal Order: Books/Treatises

The books listed below focus more on international law generally and include one or more chapters or sections specifically dedicated to arbitration.

• Building a Treaty on Business and Human Rights: Context and Contours by Surya Deva and David Bilchitz Publication Date: 2017
• Critical International Law: Postrealism, Postcolonialism, and Transnationalism by Prabhakar Singh, Benoît Mayer (eds.) Publication Date: 2014
• Irresolvable Norm Conflicts in International Law: The Concept of a Legal Dilemma by Valentin Jeutner Publication Date: 2017
• Principles of International Economic Law by Matthias Herdegen (ed.) Publication Date: 2016 (2nd ed.)
• Reconceptualising the Rule of Law in Global Governance, Resources, Investment, and Trade by Photini Pazartzis, Maria Gavouneli, Anastasios Gourgourinis, and Matina Papadaki (eds.) Publication Date: 2016
• Transnational Commercial Law by Maren Heidemann Publication Date: 2019

Arbitration Journals

• American Review of International Arbitration
• Arbitration International
• Dispute Resolution Journal
• European Arbitration Review
• European International Arbitration Review
• European Investment Law and Arbitration Review
• ICC Dispute Resolution Bulletin
• ICSID Reports
• ICSID Review
• International Arbitration Law Review
• International Commercial Arbitration
• International Quarterly
• International Sports Law Journal
• Journal of International Arbitration
• Journal of International Dispute Settlement
• Journal of International Economic Law
• Journal of Private International Law
• Journal of World Investment and Trade
• Journals in KluwerArbitration Arbitraje: Revista de Arbitraje Comercial y de Inversiones, ASA Bulletin, Asian Dispute Review, Asian International Arbitration Journal, Belgian Review of Arbitration, BCDR International Arbitration Review, Indian Journal of Arbitration Law, International Commercial Arbitration Review, International Journal of Arab Arbitration, Journal of International Arbitration, Revista Brasileira de Arbitragem, Review de l'Arbitrage, and Spain Arbitration Review
• Journals in Kluwer Law Online Includes Arbitration, ASA Bulletin, Asian International Arbitration Journal, Journal of International Arbitration, Revue de l'arbitrage, World Trade and Arbitration Materials, and more.
• Mealey's International Arbitration Quarterly Law Review
• The Middle Eastern and African Arbitration Review
• Swiss International Arbitration Law Reports
• Vindobona Journal of International Commercial Law and Arbitration

Online Sources for General Arbitration Research

• Chambers Practice Guides: International Arbitration 2019
• GlobaLex Guide to International Commercial Arbitration
• GlobaLex Guide to Investor-State Arbitration

Arbitration Treaties

Print sources.

• International Arbitration Treaties by Loukas Mistelis, Laurence Shore, Monique Sassons, general editors ; Hans Smit, founding editor Publication Date: 2010- (Looseleaf)

Electronic Sources

• Bilateral Investment Treaties (BITs) (KluwerArbitration)
• Database of Investment Treaties (ICSID)
• International Investment Agreements Navigator (UNCTAD)
• International Arbitration: Treaties (Westlaw) Coverage begins with 1952 (Europe), 1992 (NAFTA), and 1994 (GATT).
• Multilateral Treaties (Conventions) (KluwerArbitration)
• Treaties & Rules (Investor-State Law Guide)
• UNCITRAL Texts and Status
• Uruguay Round Agreements (Worldtradelaw.net)
• WTO Legal Texts (WTO)

Arbitration Rules

• Analytical Commentary to the UNCITRAL Arbitration Rules by Peter Binder Publication Date: 2013
• Arbitrating under the 2014 LCIA Rules: A User's Guide by Maxi Scherer Publication Date: 2015 Note: This is also available as an eBook through KluwerArbitration .
• Arbitration Rules -- International Institutions by Loukas Mistelis, Laurence Shore, Stavros Brekoulakis, general editors ; Hans Smit, founding editor Publication Date: 2010 (3rd. ed., looseleaf)
• A Commentary on the LCIA Arbitration Rules 2014 by Shai Wade et al. Publication Date: 2015
• Comparison of International Arbitration Rules by Robert H. Smit Publication Date: 2013 (4th ed.)
• A Guide to the HKIAC Arbitration Rules by Michael J. Moser Publication Date: 2017
• A Guide to the ICDR International Arbitration Rules by Martin F. Gusy Publication Date: 2019
• A Guide to the SIAC Arbitration Rules by John Choong, Mark Mangan, Nicholas Lingard Publication Date: 2018 (2nd ed.)
• Institutional Arbitration: Article-by-Article Commentary by Rolf A. Schütze et al. Publication Date: 2013 Coverage: ICC rules -- DIS rules -- Vienna rules -- Swiss rules -- LCIA rules -- MKAS rules -- CIETAC rules -- SIAC rules -- KLRCA rules -- IAR -- SCC rules -- DIAC rules -- ICSID rules -- UNCITRAL rule
• IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration by Tobias Zuberbühler et al. Publication Date: 2012
• The UNCITRAL Arbitration Rules: A Commentary by David D. Caron Publication Date: 2013
• American Arbitration Association (AAA) International Centre for Dispute Resolution (ICDR) - Rules, Foms, and Fees
• Financial Industry Regulatory Authority (FINRA) Arbitration Rules
• International Centre for Settlement of Investment Disputes (ICSID) Convention Arbitration Rules
• International Chamber of Commerce (ICC) Arbitration Rules
• Permanent Court of Arbitration -- PCA Rules
• United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules

Arbitration Awards and Other Proceeding Documents

Arbitration awards and documents related to arbitration proceedings can be notoriously difficult to find.  Below is a list of options you can try.  To suggest other sources that are not listed below, please contact [email protected].

• ASA Bulletin (Kluwer Law International) This publication from the Swiss Arbitration Association includes arbitral awards and orders under various auspices including ICC, ICSID, and the Swiss Chambers of Commerce (“Swiss Rules”).
• Case Law on UNCITRAL Texts (CLOUT) This is a system for collecting and disseminating information on court decisions and arbitral awards relating to the Conventions and Model Laws that have emanated from the work of the UN Commission on International Trade Law (UNCITRAL).
• CISG Database (Pace Law School Institute of International Commercial Law) Free electronic database that includes cases/awards on the CISG; can be searched or browsed by country. Also includes a UNCITRAL case digest.
• FINRA Arbitration Awards Online FINRA's Arbitration Awards database enables users to perform Web-based searches for FINRA and historical NASD arbitration awards free of charge, seven days a week. Also available through the site are historical awards for New York Stock Exchange, the American Stock Exchange, the Philadelphia Stock Exchange, and the Municipal Securities Rulemaking Board.
• Histoire sommaire et chronologique des arbitrages internationaux, (1794-1900)
• History and Digest of the International Arbitrations to Which the United States Has Been a Party 6-volume historical treatise and reporter by John Bassett Moore, published in the late 1800s and available through HeinOnline.
• ICC Court of Arbitration Bulletin Includes excerpts from ICC arbitral awards, official notes, reports and guidelines on dispute resolution practice and procedure, statistics, news, and articles by eminent arbitration specialists.
• ICSID Arbitration Cases Database Includes more than 700 cases; filtering options include case status, case type, applicable rules, stage of proceeding, dispute subject, and more.
• International Arbitration Forum Database - Awards Established in 2008, one of the biggest free online databases for lawyers and scholars seeking articles and cases related to international arbitration. Search here for arbitration awards.
• International Investment Arbitration and Public Policy (IIAPP) Includes a searchable database of investment treaty cases up to May 2010.
• International Legal Materials (ILM) ILM is a publication of the American Society for International Law. It publishes legal documents from various courts and tribunals around the world, including arbitral organizations like the ICSID arbitral tribunal.
• ITALAW Free online current awareness service for arbitration awards, decisions, and materials.
• Jus Mundi Includes arbitration awards from multiple international tribunals.
• KluwerArbitration KluwerArbitration includes an extensive database of arbitration awards issued by international arbitration tribunals, including the ICC, ICSID, ICDR, the WIPO Arbitration and Mediation Center, LCIA, Cour Permanente d'Arbitrage, AAA, and many more.
• Lloyd's Arbitration Reports Coverage = 1988-1992.
• Oxford Public International Law Database: Arbitral Cases Database of more than 1,000 arbitral awards and decisions from various sources.
• Permanent Court of Arbitration -- Cases Online database of cases heard by the PCA, including inter-state arbitrations and investor-state arbitrations.
• Reports of International Arbitral Awards Published by the United Nations. For more information about this resource, visit http://legal.un.org/riaa/ .
• World Trade and Arbitration Materials Includes reports of arbitration awards related to international trade; published several times a year.

Print Materials

• The 1958 New York Convention in Action by Marike Paulsson Publication Date: 2016 Note: This is also available as an eBook through KluwerArbitration. .
• Guide on the Convention on the the Recognition and Enforcement of Foreign Arbitral Awards by UNCITRAL Secretariat ; Emmanuel Gaillard and George A. Bermann, editors Publication Date: 2017
• New York Convention: Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958: A Commentary by Reinmar Wolff (ed.) Publication Date: 2012
• Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts by George Bermann (ed.) Publication Date: 2017

Online / Electronic Sources

• http://newyorkconvention1958.org/ This website was created to host information on the implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, with a view of promoting its uniform and effective application throughout the world. It provides access to the case-law from a number of jurisdictions on the application of the Convention by domestic courts as well as information on the ratification of the Convention by selected States.
• African Continental Free Trade Area (African Union)
• I-ARB (African arbitration news and information)
• MERCOSUR (Southern Common Market; South America)

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• Last Updated: Apr 12, 2024 4:50 PM
• URL: https://guides.library.harvard.edu/law/international-arbitration

Harvard University Digital Accessibility Policy

• Science of Law Journal
• Vol 2, Issue 12, 2023

Research on the Effectiveness of International Commercial Arbitration Agreements

DOI: 10.23977/law.2023.021230 | Downloads: 15 | Views: 311

Zhang Xibing 1

Affiliation(s)

1 School of Law, Xi'an Peihua University, Xi'an, Shaanxi, China

Corresponding Author

The issue of the enforceability of international commercial arbitration agreements plays a crucial role in resolving cross-border disputes. However, concerns about the effectiveness and enforceability of these agreements have garnered attention from international traders and business participants. This study aims to explore the legal framework and practical significance of international commercial arbitration agreements, focusing on the challenges and potential solutions related to their enforceability. International commercial arbitration agreements are widely used in international trade and investment to facilitate the expeditious resolution of disputes and ensure the protection of parties' rights. However, these agreements may face challenges due to differences in laws and judicial systems among different countries. One major challenge is the issue of enforceability. If an agreement is not fully recognized and enforced, the parties will lose the opportunity to utilize arbitration procedures to resolve their disputes. To address this issue, a series of international conventions have been adopted worldwide, such as the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration. These conventions aim to ensure the effectiveness and enforceability of arbitration agreements. Additionally, domestic judicial institutions have gradually strengthened their recognition and enforcement of such agreements through case law. However, obstacles affecting the effectiveness of arbitration agreements still exist. One problem is the divergence in understanding and agreement on the terms of the arbitration agreement between the parties. Clear provisions regarding arbitration procedures should be explicitly agreed upon when entering into the agreement to avoid subsequent disputes. Additionally, parties should choose an appropriate arbitration institution to ensure the effectiveness and enforceability of the arbitration. Another challenge is the interpretation and enforcement of arbitration agreements by domestic judicial institutions. Sometimes, domestic courts may interfere in the arbitration process or refuse to recognize and enforce arbitration agreements. To address this issue, some countries are taking measures to strengthen the recognition and enforcement of arbitration agreements. For example, some countries are establishing specialized commercial courts or setting up arbitration institutions and implementing training and educational measures to enhance judges' and legal practitioners' understanding and enforcement capabilities regarding arbitration agreements. Regarding the issue of enforceability of international commercial arbitration agreements, we have put forward suggestions and potential reform measures. These include strengthening international collaboration mechanisms, promoting the development of more unified and explicit legal provisions, and improving the professionalism and efficiency of arbitration institutions. In conclusion, the issue of the enforceability of international commercial arbitration agreements is crucial for resolving cross-border disputes. By strengthening the recognition and enforcement of international conventions and domestic legal systems, as well as driving relevant reforms, we can enhance the enforceability of these agreements and promote the development of international trade and investment. 

CITE THIS PAPER

Zhang Xibing, Research on the Effectiveness of International Commercial Arbitration Agreements. Science of Law Journal (2023) Vol. 2: 211-218. DOI: http://dx.doi.org/DOI: 10.23977/law.2023.021230.

[1] Guo B. A Theoretical Study on Nationality and Cancellation of International Commercial Arbitration Awards [J]. Science of Law Journal, 2023, 2 (2) [2] Michal M. The Singapore Mediation Convention and International Business Mediation [J]. International and Comparative Law Review, 2022, 22 (2): 179-196. [3] Todor K. International commercial arbitrator addressing money laundering [J]. Journal of Money Laundering Control, 2022, 25 (3): 637-644. [4] Yuanfei G, Yuan L. Construction and Application of International Commercial Dispute Resolution Mechanism Model [J]. Security and Communication Networks, 2022. [5] N P O. Corruption in international commercial arbitration—Domino effect in the energy industry, developing countries, and impact of English public policy [J]. The Journal of World Energy Law & Business, 2022, 15 (2): 136-150. [6] ILHÃO J M. Arbitration vis‐à‐vis other professions: a sociology of professions account of international commercial arbitrators [J]. Journal of Law and Society, 2022, 49 (1): 48-70. [7] Garimella, Ramani S, Rawat, et al. Daniel Girsberger et al. (eds.), Choice of Law in International Commercial Contracts Global Perspectives on the Hague Principles (Oxford Private International Law Series Series – Editors: Jonathan Harris QC & Andrew Dickinson) [J]. Netherlands International Law Review, 2022, 68 (3): 1-8. [8] P S C. Between rags and riches: rethinking security for costs in international commercial arbitration [J]. Arbitration International, 2022, 37 (4): 851-862. [9] Tamar M. Procedural Cross-Fertilization in International Commercial and Investment Arbitration: A Functional Approach [J]. Journal of International Dispute Settlement, 2021, 12 (4): 585-616. [10] Economou E M L , Kyriazis N A , Kyriazis N C. Managing Financial Risks while Performing International Commercial Transactions. Intertemporal Lessons from Athens in Classical Times [J]. Journal of Risk and Financial Management, 2021, 14 (11): 509-509.

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