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Trust, Contextual Impartiality, and Open-Mindedness in Investor-State Dispute Settlement

Brekoulakis, Stavros; Howard, Anna; (2024) Trust, Contextual Impartiality, and Open-Mindedness in Investor-State Dispute Settlement. Current Legal Problems , 77 (1) pp. 377-412. 10.1093/clp/cuae014.

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Howard_CLP article Brekoulakis Howard Trust Contextual Impartiality Open-mindedness in ISDS (before publisher formatting).pdf - Accepted Version
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Abstract

This article analyses impartiality in Investor-State Dispute Settlement (ISDS) by identifying the way that the parties’ trust in arbitrators is constructed. Drawing on the findings of a large-scale empirical project, it questions the applicability of an orthodox judicial doctrine of impartiality to ISDS on the grounds that trust in arbitrators is constructed on a fundamentally different basis from that of trust in judges. The primary feature of a judicial doctrine of impartiality is that trust is founded on an absolutist approach to impartiality which is intended to ensure that judges have no predispositions to parties. In contrast, trust in ISDS is founded on the method of party appointment which is based on a very different assumption—that arbitrators’ predispositions can be valuable and appropriate in the decision-making process. Drawing on empirical findings, moral philosophy, and psychology, this article proposes the idea of contextual impartiality. Under this approach, the question is not whether an arbitrator can meet universal standards of impartiality irrespective of the context within which the arbitrator operates. Rather, the critical distinction is between permissible and impermissible partiality which depends on whether the individual is reasonably expected to act partially because of their circumstances. In this respect, the article identifies open-mindedness as a fundamental feature of a contextual approach to impartiality and a bright line between permissible and impermissible partiality.

Type: Article
Title: Trust, Contextual Impartiality, and Open-Mindedness in Investor-State Dispute Settlement
DOI: 10.1093/clp/cuae014
Publisher version: https://doi.org/10.1093/clp/cuae014
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10202845
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