Marginals and Elites in International Arbitration (original) (raw)
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It is often claimed that international investment arbitration is marked by a revolving door: individuals act sequentially and even simultaneously as arbitrator, legal counsel, expert witness, or tribunal secretary. If this claim is correct, it has implications for our understanding of which individuals possess power and influence within this community ; and ethical debates over conflicts of interests and transparency concerning 'dou-ble hatting'—when individuals simultaneously perform different roles across cases. In this article, we offer the first comprehensive empirical analysis of the individuals that make up the entire investment arbitration community. Drawing on our database of 1039 investment arbitration cases (including ICSID annulments) and the relationships between the 3910 known individuals that form this community, we offer the first use of social network analysis to describe the full investment arbitration community and address key sociological and normative questions in the literature. Our results partly contradict recent empirical scholarship as we identify a different configuration of central 'power brokers'. Moreover, the normative concerns with double hatting are partly substantiated. A select but significant group of individuals score highly and continually on our double hatting index.
The Revolving Door in In International Investment Arbitration
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It is often claimed that international investment arbitration is marked by a revolving door: individuals act sequentially and even simultaneously as arbitrator, legal counsel, expert witness, or tribunal secretary. If this claim is correct, it has implications for our understanding of which individuals possess power and influence within this community; and ethical debates over conflicts of interests and transparency concerning ‘double hatting’—when individuals simultaneously perform different roles across cases. In this article, we offer the first comprehensive empirical analysis of the individuals that make up the entire investment arbitration community. Drawing on our database of 1039 investment arbitration cases (including ICSID annulments) and the relationships between the 3910 known individuals that form this community, we offer the first use of social network analysis to describe the full investment arbitration community and address key sociological and normative questions in ...
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Hatting," Malcolm Langford presents findings that complement his own previous article on "The Revolving Door in International Investment Arbitration." 1 In his most recent paper, Langford argues that "[t]he rising democratization of investment arbitration is challenging traditional theories on appointment of international investment arbitrators." 2 His main claim is that the "public law critiques of international investment arbitration" are leading to the "potential changing sociology of appointment." 3 By "potential changing sociology of appointment," Langford has in mind the decline of "double hatting," and suggests the existence of two causal relationships in this regard: (i) public critiques of "double hatting" impact the practices of actors in the field, who increasingly avoid acting as counsel and arbitrator in parallel cases; (ii) this decline of "double hatting" is associated with the emergence of a new "moral economy" (or a "changing sociology") in the investment arbitration market. My comments below focus on the data put forward by Langford in support of his claims, his explanation of "double hatting" and my own tentative explanation of this phenomenon.
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A growing sociological and empirical literature focus on lawyers as part of the globalization and transnationalization of law. Sociological approaches treat arbitration tribunals as embedded in society, and arbitral awards as the product of a network of actors. Weberian sociology treats institutionalization as a legitimization process around the specific individuals and their practices. Arbitral tribunals interact in highly differentiated legal fields, and their practices are legitimized in shared epistemologies of professional legal knowledge. A group of individuals is bound together by a common creed of peaceful international dispute settlement, particularly arbitration. Arbitral tribunals are institutions that develop specific institutional and legal rationalities. Factors beyond institutional background. This chapters draws together the existing scholarship on arbitrator behaviour with the aim of identifying gaps. Section II surveys the theoretical contributions on the sociology of international arbitrators. Section III surveys empirical studies on arbitrators.
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