The Roles of Psychology in International Arbitration

International Arbitration Law Library Series Volume 40

The Roles of Psychology in International Arbitration is the first book to focus on the insights into international arbitration that can be gained from contemporary psychology. The system of international arbitration is built on private contractual relations, yet has been endorsed by governments around the world as a fair and reliable alternative to litigation in State courts. As a private process, however, its authority and legitimacy derive entirely from the views and actions of those involved in the arbitral process, whether arbitrators, counsel, or parties. It is, though increasingly clear that psychological factors complicate, and in some cases radically change, every arbitral proceeding. In this context, psychological insights are crucial for understanding how international arbitration genuinely operates, and whether the legal framework currently applied to it is well suited to achieving the aims of ensuring a fair and reliable dispute resolution procedure. This book meets the increasingly recognized need for understanding the role of psychology in arbitral proceedings and forms an indispensable foundation for subsequent work in this area.

What’s in this book:

With contributions from nineteen internationally known figures in their fields – arbitrators, mediators, lawyers, law professors, psychology professors, psychologists – and drawing from a longer-term project on the role of psychology in arbitration, this ground-breaking volume addresses a range of topics, including the following:

• the decision-making processes of arbitrators;
• the ability of arbitration to serve as a genuine dispute resolution mechanism;
• the impact of particular procedures on the arbitral process;
• bias, self-deception and vested interests in judgment and decision-making;
• the role of arbitrators in managing the arbitral process;
• cultural differences in the evaluation of arguments;
• psychological influences on witness testimony;
• the impact of tribunal composition on arbitral decision-making;
• the influence of arbitration’s professional context on arbitrators and legal counsel;
• methods for arbitrators and legal counsel to more effectively manage the arbitral process.

This book demonstrates the benefits to be gained from genuinely collaborative interdisciplinary work and thereby provides a model to be further refined by others in their own attempts to get beyond the domain-specific nature of true expertise.

How this will help you:

Informed by behavioural insights, this book will enable counsel and arbitrators to think critically about the underlying assumptions and the potential behavioural effects of a range of elements of arbitral proceedings, while individuals researching arbitration will gain a greater understanding into the psychological context in which every arbitration occurs. This innovative and forward-thinking analysis will be of great value to the international arbitration community, as well as to institutions supporting arbitration and to academics in the field.

Editor

Contributors

Preface

PART I The Decision-Making Processes of Arbitrators

Chapter 1 Rules and Reliability: How Arbitrators Decide

William W. (Rusty) Park            

Chapter 2 Bias, Vested Interests and Self-Deception in Judgment and Decision-Making:  Challenges to Arbitrator Impartiality

Peter Ayton & Geneviève Helleringer

Chapter 3 Biases and Heuristics in Arbitrator Decision-Making: Reflections on How to Counteract or Play to Them

Edna Sussman

Chapter 4 Cultural Differences in Perceptions of Strong and Weak Arguments  

Jos Hornikx

PART II Arbitration and the Resolution of Disputes

Chapter 5 The Arbitrator as Leader and Facilitator

Ran Kuttner

Chapter 6 Disputant Psychology in International Arbitration: What Can a Comparison with Domestic Arbitration Teach Us?

Pietro Ortolani & Donna Shestowsky           

Chapter 7 The Potential Impacts of Psychology in the Resolution of Foreign Direct Investment Disputes by International Investment Arbitration

Richard Earle

PART III  Arbitral Procedure

Chapter 8 Going First Makes a Difference: Decision-Making Dynamics in Arbitration

Mark A. Cymrot & Paul Levine

Chapter 9 Human Memory and Witness Evidence in International Arbitration

Ula Cartwright-Finch      

Chapter 10 Separate Awards for the Advance on Costs: Psychological Phenomena That Account for Biased Risk Assessment Generated by Early Victories and Identify Methods for Legal Counsel to De-bias Risk Assessment  

Cornel Marian & Sean P. Wright

PART IV  The Role of the Arbitrator 

Chapter 11 Some Psychological Preconditions for the Process of International Arbitration: Preliminary Findings of a Research Project with a Qualitative Approach

Dieter Flader & Charles W. Anderson III                     

Chapter 12 Assessing Evidence, Constructive Mistrust and the Loneliness of Decision-Making: ‘There’s No Art to Find the Mind’s Construction in the Face’

Geoffrey M. Beresford Hartwell

Chapter 13 Dissents in International Arbitration

Audley Sheppard QC  & Daphna Kapeliuk

PART V The Context of International Arbitration

Chapter 14 Systemic Bias and the Institution of International Arbitration: A New Approach to Arbitral Decision-Making

Stavros Brekoulakis

Chapter 15 The Psychological Anthropology of International Arbitration

Ilias Bantekas

Chapter 16 Balancing the Triangle: How Arbitration Institutions Meet the Psychological Needs and Preferences of Users

Adriana Aravena-Jokelainen & Sean P. Wright