Collegial Games: Analyzing the Effect of Panel Composition on Outcome in Investment Arbitration

Article excerpt

I. INTRODUCTION.................................. ...................................... 267

II. INVESTMENT TREATY ARBITRATION UNDER ICSID ...............280

III. ARBITRATING ON COLLEGIAL PANELS: ATHEORETICAL ANALYSIS............ ............................................................... .....284

A. The Market for Arbitrators: Shopping for the Right Arbitrator....................................... ................285

B. The Dynamics of Collégial Panels: On Experienced and Inexperienced Arbitrators ................................................292

C. Arbitrators ' Incentives and the Costs of Dissents ............ 294

IV. METHODOLOGY .................................................................... ...298

A. Data Selection and Coding Method ............................... .300

V. RESEARCH RESULTS..... ............................................................ 304

A. Panel Composition and Outcome..................................... 304

B. Dissents and Prior ICSID Experience..............................308

VI. CONCLUSION...................................... ...................................... 310

I. INTRODUCTION

Scholarship on voting patterns in collégial courts has become prominent in recent years.1 Numerous studies have explored theoretical and empirical aspects of panel effects in a variety of multi-member courts.2 Building on various models of judicial behavior,3 scholars have theorized on the factors that affect judicial behavior in collégial settings.4 Empirical studies have focused on voting patterns of judges, evaluating whether judges' ideology or party affiliation influence their decisions,5 and whether the composition of collégial panels affects the outcome of disputes, among other issues.6

In contrast to the wide academic interest in judicial voting on collégial courts, limited scholarly attention has been paid to voting patterns of arbitrators and even less to factors affecting arbitral decision-making in multi-member arbitration panels. What little theoretical scholarship on arbitrators' voting exists has mostly perceived arbitration as a dispute resolution process conducted primarily by a single arbitrator and not by a panel of arbitrators.7 However, arbitration is not necessarily a solitary enterprise. A large number of commercial arbitration cases, and the majority of international cases, are heard and decided by three-member arbitration tribunals. Typically, the selection method of arbitrators begins with each party selecting one arbitrator. Then the parties, the two party-appointed arbitrators, or a third body, appoint the chairman.9

The selection of arbitrators has been considered one of the most critical aspects of arbitration.10 In collégial panels it has a special dimension.11 Because the outcome of the dispute is the product of the panel members who hear the case as a group and deliberate jointly before rendering their decision, a party who selects an arbitrator hopes not only that the arbitrator will be sympathetic to his case,12 but more importantly, that the arbitrator will be influential before the other panel members and be able to convince them to decide in his favor.13

Arbitral decision-making in collégial panels is thus composed of two interrelated processes: individual, in which each arbitrator arrives at a decision on the dispute, and collective, in which the panel members deliberate together, consider the views of their colleagues, and agree on the award.14

Surprisingly, notwithstanding the collégial enterprise15 of multi-member arbitration panels, empirical studies exploring arbitral decisions have overlooked interpanel dynamics. These studies have focused either on the awards made by,16 or the voting patterns of presiding arbitrators alone.17 However, no research has yet analyzed the intricacies of collégial settings or explored the factors relating to panel composition that might affect the outcome of disputes. …