Arbitration and Judicialization

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URI: http://hdl.handle.net/10900/97766
http://nbn-resolving.de/urn:nbn:de:bsz:21-dspace-977661
http://dx.doi.org/10.15496/publikation-39149
Dokumentart: Aufsatz
Date: 2011
Source: Oñati Socio-Legal Series, 1-9, 2011
Language: English
Faculty: Kriminologisches Repository
Department: Kriminologie
DDC Classifikation: 340 - Law
Keywords: Justiz , Schlichtung , Schiedsgerichtsbarkeit
Other Keywords:
Principal-Agent framework
International Center for the Settlement of Investment Disputes (ICSID)
arbitration
judicialization
proportionality
balancing
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Abstract:

The arbitral world is at a crucial point in its historical development, poised between two conflicting conceptions of its nature, purpose, and political legitimacy. Formally, the arbitrator is an agent of the contracting parties in dispute, a creature of a discrete contract gone wrong. Yet, increasingly, arbitrators are treated as agents of a larger global community, and arbitration houses concern themselves with the general and prospective impact of important awards. In this paper, I address these questions, first, from the standpoint of delegation theory. In Part I, I introduce the basic “Principal-Agent” framework [P-A] used by social scientists to explain why actors create new institutions, and then briefly discuss how P-A has been applied to the study of courts. Part II uses delegation theory to frame discussion of arbitration as a mode of governance for transnational business and investment. In Part III, I argue that the International Center for the Settlement of Investment Disputes (ICSID) is presently in the throes of judicialization, indicators of which include the enhanced use of precedent-based argumentation and justification, the acceptance of third-party briefs, and a flirtation with proportionality balancing. Part IV focuses on the first wave of awards rendered by ICSID tribunals pursuant to Argentina’s response to the crushing economic crisis of 2000-02, wherein proportionality emerged, adapted from the jurisprudence of the Appellate Body of the World Trade Organization.

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