Beyond Cognition: Are Party-Appointed Arbitrators Truly Impartial?

Abstract

The present paper examines the principle of impartiality and its significance in the context of party-appointed arbitrators in international investment and commercial arbitration. It reflects on how cognitive biases influence decision-making in arbitral disputes and how such biases can be mitigated to enhance the credibility and fairness of international dispute resolution procedures. Arbitration is a common mechanism for resolving disputes in international investment law, with parties often appointing tribunal members. However, the impartiality of these arbitrators is frequently questioned. Cognitive biases, such as confirmation bias and anchoring bias, can significantly impact the fairness of arbitration by affecting how evidence is perceived and evaluated. This study explores the relationship between cognitive biases and arbitrator impartiality, considering the role that such biases may play in the outcome of an arbitration process. Integrating doctrinal legal analysis with empirical insights from psychology, the paper aims to provide a comprehensive understanding of impartiality challenges faced by party-appointed arbitrators. It analyzes institutional measures like the duty of disclosure and ethical guidelines, alongside the theoretical framework of the ‘devil’s advocate’ approach, to propose effective strategies for mitigating biases. By enhancing understanding of these issues, the paper aims to contribute to the ongoing debate on the fairness of arbitration in international investment and commercial law.