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International arbitration is a means of dispute settlement often privileged over litigation. One reason for this lies in the possibility for the parties to appoint their own arbitrator. However, despite party-appointed, international arbitrators should still be independent and impartial. Yet, parties spend considerable time and resources to appoint the ‘right’ arbitrator. Since partisanship is prohibited, why is this the case and what makes a ‘right’ arbitrator then? The psychological and judicial literatures have both already extensively demonstrated that one’s initial preferences and background do influence their decision-making to even determine legal outcomes, with or without their conscious awareness. Against this background, the article investigates the use of confirmatory strategies in arbitral decision-making; strategies which could be consciously used (amounting to partisanship) but which are also inherent to human cognition and thus intuitively used. This behavioural analysis of arbitration is supported by qualitative analyses using semi-structured interviews and arbitral awards.

This article introduces the findings of social psychology, especially group psychology, into the study of investment arbitration. It argues that arbitrators as members of small groups (i.e. tribunals or divisions in an Investment Court) might be subjected to a number of influences inherent to such collective settings—factors already proven to be at play in domestic courts. In turn, identifying those factors provides an opportunity to reduce their impact on the decision-making of legal adjudicators through the implementation of adequate remedies. Adopting one of the most popular models of group decision-making—groupthink— this article discusses the manifestations and implications of this theory for Investor-State Dispute Settlement both in its ad hoc and institutionalized forms. Specifically, it claims that the Investment Court defended by the EU and generally posited in some agreements might not be that different from the current system from a socio-psychological perspective, and hence could be further improved.