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Social Capital in the Arbitration Market

Published on September 22, 2014        Author: 

sergio puig-picDr. Sergio Puig is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law.

I am grateful to Professor Weiler, the editors of EJIL and the organizers of EJIL: Talk! for hosting the discussion of my article. I am privileged to have Daphna Kapeliuk, Michael Waibel, and Thomas Schultz as collaborators in this endeavor.  This is a great opportunity to engage with wonderful scholars in the field of international law, all of whom have produced very interesting and inspiring empirically-based research in the field. Below I summarize the methodology and main arguments of this piece.

In this modest contribution, I try to bring together different scholarly traditions. In framing the question, I note that scholars with different academic traditions have provided diverse and, at points, conflicting explanations regarding why arbitration professionals are such a seemingly small and homogenous group in terms of gender, national origin and educational background. In this article, I seek to empirically assess this observation and to explore why this may be happening. Given the limited access to the record of appointments under most arbitration facilities, I used the data of the International Centre for Settlement of Investment Disputes (ICSID). In spite of critiques regarding ICSID’s practices with respect to transparency, it is the sole arbitration institution to publicize its entire record of appointments.

By surveying the list of ICSID appointments, I seek to operationalize the basic characteristics of the social structure of international arbitrators.  Anticipating some reactions, I must admit that this is an imperfect alternative. Ideally we would have more information about international arbitration appointments generally. But given the shared characteristics between general international arbitration and the more specific field of investor-state arbitration, I argue that ICSID’s record of appointment can imperfectly inform this scholarly debate. So, while the article focuses on ICSID arbitrators–a group that has not escaped controversy in recent years–my point is more general and tries to speak to a broader scholarly debate.

Applying network analytics (and some basic statistical analysis) to ICSID’s record of appointment, I confirm what we already knew: a few, socially prominent actors are dominant in the field. But not all arbitrators are equal; hence there are different sources of social capital. Either because of language or professional skills, nationality background or their diplomatic abilities, some serve to link cliques or communities within the network (think of Bernardo Cremades), others are trusted authorities among the their peers (think of Gabrielle Kaufmann-Kohler) and others have high levels of credibility and influence within the arbitral institution, in this case ICSID (think of Judge Gilbert Guillaume). However, an important –perhaps the most important source that may propel centrality (at least when it comes to ICSID) –seems to be the timely signaling of political preferences.

This broader picture of the social structure, as well as what we can infer from the rules, social norms, and economic incentives that affect it, assist us in understanding more about its plausible mechanisms of formation. As I conclude, one area for possible exploration is how central arbitrators profoundly benefit from the heuristic biases, risk aversion, and desire for predictable outcomes on the part of those making appointments (whose main source of information is often other arbitrators). This may translate into a social structure that is difficult to penetrate not because a ‘mafia’ (as a recent publication has in my view pejoratively and incorrectly described the most successful arbitrators) controls its access, but mainly because those responsible for appointments place value on some level of predictability about the decision-making process and outcomes. Hence, parties’ attempts to navigate the complexity of possible tribunal combinations are likely to produce heuristic solutions that heavily rely on appointment records, and may result in the recommendation and appointment of those who may deliver more predictable solutions, even if wrong or imperfect. To help kick off the debate, I leave you with a circular graph of the core of the network (click to enlarge).arbyx

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