Search

The thesis offers a behavioural analysis of international arbitration by digging deeply into the psychology of judgment and decision-making. It aims to understand how arbitrators really make their decisions and how this behaviour then influences the content of arbitral awards and outcomes of disputes. It therefore responds to the epistemology of legal realism by using a behavioural law and economics methodology and endorses the indeterminacy of the law and the bounded rationality of individuals. Despite mastering legal reasoning, international arbitrators are still human beings and their psychology will therefore influence their decision-making. To account for this, the thesis creates two behavioural models of arbitral decision-making building on psychological theories and the US judicial decision-making literature when relevant: one cognitive and the other social. Each heuristic model maps out as many behavioural influences that may impact the decision-making of international arbitrators acting as sole arbitrators or as members of an untenured tribunal. This theoretical application of psychology to international arbitration for creating these models in the first place is then followed by an empirical evaluation of specific cognitive, motivational, and social influences. This evaluation, addressing how arbitrators process the information presented to them by the parties, allows for a comprehensive view of the bounded rationality of individuals, while considering the extent of these behavioural factors in international arbitration. The test of these cognitive, motivational, and social (here, group decision-making) theories applied to the arbitral framework consists in semi-structured interviews conducted with members of the arbitral community (i.e., international arbitrators and tribunal secretaries), a qualitative analysis of investment arbitral awards available to the public, and a comparative analysis of the judicial and arbitral frameworks. The thesis concludes on the impact of behavioural influences on arbitral decision-making, identifies areas for future research, and formulates brief prescriptions (e.g., procedural interventions, institutional design, and training) in order to control the behavioural influences that are conducive to decision-making errors and promote the ones that are rather beneficial.