You Only Dissent Once: Re-Appointment & Legal Practice in Investment Arbitration

• In Event: The Role of Bureaucrats in International Cooperation

Abstract

This paper examines the unexpected frequency of unanimous opinions in international investment arbitration. It argues that legal and attitudinal models are insufficient to account for the apparent “dissent aversion” in arbitration and that bureaucratic incentives provide an alternative explanation. Arbitrators in international tribunals, unlike judges in international courts, do not have a fixed tenure and must compete for re-appointment by disputing parties. This creates strategic pressure to conform to certain behavioral norms in order to maintain one’s career. The paper examines appointments made to tribunals registered at the International Centre for the Settlement of Investment Disputes (ICSID) and estimates the effect of dissent on re-appointment using event history analyses. I find that arbitrators who issued dissenting opinions were on average about three times less likely to be re-appointed as presiding members in subsequent disputes compared to arbitrators who did not. Unanimity in arbitration rulings is therefore not evidence of legal consensus and is likely best explained by the professional consequences of dissent.

Author

• Anton Strezhnev, University of Pennsylvania