International Arbitration – Between Myth and Reality

Abstract

The first woman to deliver the John E.C. Brierley Memorial Lecture in November 2016, Susan Franck explores common but flawed accounts of international arbitration based on anecdotes and myths while encouraging the audience to pay more attention to scientific facts. While acknowledging the challenges of living in a “post-factual” society, she argues that international arbitration, whether commercial or investment-based, is caught within a larger geo-political maelstrom which includes a backlash against globalization, the popularization of populism, and a turn toward nationalism. Rather than permitting decisions to be affected by an emotive torrent of intuitive forces that facilitate decisions based upon fear or easily accepted cognitive narratives, she recommends proceeding based upon rationality, data analysis, and with an eye towards evidence-based reform. In an effort to connect data and normative choices, Professor Franck explores existing empirical research on international arbitration, with a focus on cognitive illusions and how intuitive decision-making impairs quality both decision-making and the implementation of appropriate reform of international arbitration. She ultimately challenges stakeholders to move past ideological debates in an effort to find common ground in the valuation of vetted facts and rule of law values.