The Repeat Appointment Factor - Exploring Decision Patterns of Elite Investment Arbitrators

Abstract

This Article analyzes the judicial behavior of repeatedly appointed arbitrators. Focusing on repeat investment arbitrators, the research empirically controverts the conventional wisdom that arbitrators tend to render compromise awards and the perception that investment arbitrators are biased in favor of investors. The research explores the decisions-patterns of repeat investment arbitrators on three levels, the tribunal as a whole, the appointment status of arbitrators on the tribunal, and the individual level. By distinguishing repeat arbitrators as a group and differentiating between the roles that they play on a tribunal, this research seeks to present a more nuanced understanding of arbitral decision-making. The research shows that repeat arbitrators display no biases and no tendencies to ‘split the difference’. It further shows that repeat presiding arbitrators are less averse to extreme outcomes than party-appointed arbitrators. Finally, the research shows that the arbitrators’ decision records, examined individually, do not always display a balanced decision pattern over time. The research concludes that the arbitrators’ incentive to maintain their reputations as experienced and unbiased experts may lead them to grant an award, uninfluenced by the purported need to satisfy the parties or any of them.