Blinding International Justice

by Sergio Puig ~ May 20, 2017

The past twenty years have seen a tremendous rise in international dispute settlement mechanisms. As international adjudication has become more prominent and pervasive, some of its most fundamental tenets have also come under scrutiny. Recently, a new debate has emerged regarding party-appointments — a widespread feature in international arbitration. While international arbitrators, like national judges, are supposed to exercise independent judgment and be neutral and impartial, practitioners and scholars concur that arbitrators often lean in favor of the nominating party. As a result of concerns over a lack of impartiality, “blind appointments” — where nominees do not know which party appointed them — have been suggested as a corrective intervention in the arbitration field.

This Article explores the causes, implementation challenges, and possible limitations of blind appointments in arbitration. It makes three contributions. First, it proposes a conceptual framework to understand the different biases introduced with the nomination of judges in international adjudication: compensation, affiliation, selection, and epistemic effects. Second, considering new data from investment arbitration proceedings and experimental surveys on arbitrators, it shows that blinding is a promising intervention to target affiliation effects while maintaining potential benefits resulting from party participation in tribunal formation. Third, it explains how blind appointments may have important limits as to their corrective properties and explores the conditions that are most favorable for the success of this proposal in other fields of international adjudication.

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