Are Arbitrators (Judicial) Activists?

Abstract

Abstract When judges are described as activists they are usually accused of either intruding into policy making best left to the legislative branches of government or intruding into values or social mores – matters best left to democratic processes, i.e. to “the people”. For an arbitrator to be an activist she would need to go beyond her duly conferred quasi-judicial powers, and arbitrators – and in particular investment arbitrators – have been accused of doing just that. Though there is a fine line between what constitutes activity and what constitutes activism, I suggest that arbitrators are not generally “activists.” First, they wield authority conferred on them by the arbitral agreement and by other sources of arbitral power. Second, particularly when the applicable legal standard is vague, this conferral includes quite broad authority to define and develop the applicable law. Third, the lack of agreement among states about what certain obligations mean suggests that arbitral tribunals are not going beyond their authority; rather, the fault, if fault there is, lies in the language of the agreements themselves.