Puig: Blinding International Justice

Sergio Puig (Univ. of Arizona - Law) has posted Blinding International Justice (Virginia Journal of International Law, forthcoming). Here's the abstract:

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 tenants have also come under deep 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 be neutral and impartial and to exercise independent judgment, practitioners and scholars concur that arbitrators often lean in favor of the nominating party. As a result of concerns over lack of impartiality, “blind appointments” — wherein nominees do not know who appointed them — has 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 theoretical framework to understand the different biases introduced with the nomination of judges in international adjudication — compensation, affiliation, selection and epistemic effects. Second, based on data of international investment arbitration proceedings, it shows that blinding is a promising intervention to target affiliation effects while maintaining the benefits resulting from the parties’ participating in the tribunal’s formation. Third, it explains how blind appointments may have important limits as to their corrective properties and explores the conditions that are more favorable for the success of this proposal in other fields of international adjudication.

At a more general level, this intervention is an important precursor to understanding the importance of conceptual and experimental research in international adjudication. It attempts to motivate further empirical investigations to address debates over biases and judicial politics in international courts and tribunals.