Biased or Not Biased? Arbitral Decision-Making and Arbitrators’ Preferences

Abstract

ABSTRACT International arbitration is a means of dispute settlement often privileged over litigation. One reason for this lies in the possibility for the parties to appoint their own arbitrator. However, despite party-appointed, international arbitrators should still be independent and impartial. Yet, parties spend considerable time and resources to appoint the ‘right’ arbitrator. Since partisanship is prohibited, why is this the case and what makes a ‘right’ arbitrator then? The psychological and judicial literatures have both already extensively demonstrated that one’s initial preferences and background do influence their decision-making to even determine legal outcomes, with or without their conscious awareness. Against this background, the article investigates the use of confirmatory strategies in arbitral decision-making; strategies which could be consciously used (amounting to partisanship) but which are also inherent to human cognition and thus intuitively used. This behavioural analysis of arbitration is supported by qualitative analyses using semi-structured interviews and arbitral awards.