International Arbitration and Judicial Politics in Authoritarian States

Abstract

This article uses the case of Sudan to show how authoritarian regimes benefit from embracing international arbitration, allowing them to maintain domestic control and attract foreign investment. International arbitration ensures that foreign‐investment disputes are resolved outside of domestic purview, obviating the need for nondemocratic states to create independent courts. Research on judicial politics in authoritarian regimes has largely overlooked those private and extra‐judicial pathways—international arbitration tribunals—that illiberal regimes have been taking. Similarly, research in international commercial law has neglected domestic politics, overlooking arbitration's consequences for domestic stakeholders. Promoting international arbitration without paying heed to its side effects can unwittingly help illiberal regimes, particularly in weak states, to continue to repress their judiciaries and curtail the development of domestic legal institutions and the rule of law.