Document Type
Article
Publication Title
Emory Law Journal
Publication Date
2017
ISSN
0094-4076
Page Number
1115
Keywords
labor laws, arbitration, dispute resolution
Disciplines
Dispute Resolution and Arbitration | Labor and Employment Law | Law
Abstract
Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never demonstrably worse than, national judges analyzed in earlier research. There may be reasons to prefer judges to international arbitrators, but the quality of judgment and decision making, at least as measured in these experimental studies, is not one of them. Thus, normative debates about global dispute resolution should focus on using structural safeguards and legal protections to enhance quality decision-making, regardless of decision maker identity or title.
Recommended Citation
Chris Guthrie, Susan D. Franck, Anne van Aaken, James Freda, and Jeffrey J. Rachlinski,
Inside the Arbitrator's Mind, 66 Emory Law Journal. 1115
(2017)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/806