Inside the Arbitrator’s Mind

Susan D. Franck, Professor of Law at American University – Washington College of Law, Anne van Aaken, University of St. Gallen – Law Department and Max Planck Society for the Advancement of the Sciences – Max Planck Institute for Research on Collective Goods, James Freda, attorney and diplomat at the United Nations, Chris Guthrie, Dean and John Wade-Kent Syverud Professor of Law at Vanderbilt University – Law School, and Jeffrey J. Rachlinski, Henry Allen Mark Professor of Law at Cornell Law School, have published “Inside the Arbitrator’s Mind,” Emory Law Journal, Vol. 66, Forthcoming.  In their journal article, the authors explore how arbitrators ultimately decide international disputes using experimental research.

Here is the 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.

This and other research papers written by the authors may be downloaded free of charge from the Social Science Research Network.

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