The Arbitrators’ Use of Comparative Law Methodology: A Qualitative Assessment of Selected CAS, ICC, and ICSID Awards

Abstract

This paper uses empirical evidence from real-life international arbitration awards to determine whether and to what extent international arbitrators rely on comparative law methodology (CLM) to reach or to explain their decisions. We do not advance a new theory or CLM method. Instead, this paper starts from the proposition that arbitrators rarely resort to CLM, and when they do, their usage of CLM appears in the form of dicta and is not outcome determinative. Using archival and content analysis research methodologies, we conducted an empirical study on a small sample of publicly available arbitration awards from the sports, commercial, and investment arbitration settings. Using these awards, we attempted to assess the extent to which arbitrators reference—and more importantly—incorporate CLM into the decision-making process leading to an award. For practical purposes, this paper reviews some of the extensive—but scattered—literature on CLM in an attempt to identify the most important CLM variables that are relevant to our study (i.e., the functional, structural, analytical methodologies) and the circumstances in which CLM is actually employed. Then, we reviewed each of the actual awards in our sample to code all descriptive variables relevant to our CLM study. After the data collection phase, we proceeded to test our paper’s main hypothesis—that CLM has limited influence on the arbitrators’ decision-making process. In this sense, we further hypothesized the following: (i) arbitrators rarely employ CLM in justifying the awards they issue; (ii) when arbitrators do resort to CLM, the resulting analysis is immaterial [is not outcome determinative] to the awards’ final rulings; and (iii) arbitration panels with a majority of civil law arbitrators are equally likely to employ CLM as panels with a majority of common law arbitrators are. Finally, we have reported herein our findings and offered recommendations for future empirical assessments on the same topic.

Keywords: International arbitration, comparative law methodology, empirical legal research, CAS, ICC, ICSID