Economic Analysis of the Arbitrator's Function

Name: Economic Analysis of the Arbitrator's Function
Brand: Kluwer Law International
Price: 192.99 EUR
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Bruno Guandalini(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 16. Juni 2020

488 Seiten

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Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Dedication
About the Author
Table of Contents
Foreword
Preface
List of Abbreviations
Acknowledgments
Introduction
[I] General Introduction
[II] Motivations for the Book
[III] Theoretical Framework
[IV] Methodology
[V] Difficulties and Limitations
[VI] Delimitations and Important Clarifications
[VII] Expected Audience
[VIII] Plan
Part I The Market for Arbitrators
Chapter 1 The Market for Arbitrator's Formation and Its Critics
§1.01 INTRODUCTION
§1.02 THE MARCHANDISATION OR COMMODIFICATION OF THE ARBITRATOR'S FUNCTION
[A] First Signs of the Arbitrator's Function Historical Professionalization
[B] Causes of the Market for Arbitrators Formation
[1] The Legal Response to a Global Demand
[2] The People Interested in the Upcoming Market for Arbitrators
[a] The Promoters of Arbitration Legitimacy
[b] The Creators, Managers, Directors, and Appointing Authorities of Arbitral Institutions
§1.03 LEGITIMACY AND ETHICAL CRITICISM OF THE ARBITRATOR'S FUNCTION'S FINANCIAL INCENTIVE AND THE VICTORY OF THE FREE MARKET
[A] The "Money Versus Justice" Theoretical Conflict and the Arbitrator's Function
[1] Jurisdictional Moral Legitimacy and the Critiques to the Arbitrator's Function
[2] The Market for Arbitrators and the Efficiency of the Function Discard Any Possible Criticisms to Eventual Immorality of the Commodification of the Arbitrator's Function
[a] Justice as Procedural Fairness Will Always Be Protected
[b] The Nature of the Arbitrator's Mandate and the Parties' Freedom
[c] Inefficient Procedure Means Unfair Justice
[B] Professional Ethics and the Arbitrator's Function
[1] The Demand for Arbitrator's Ethical Duties
[2] The Professional Ethics Regulation of the Arbitrator Is Justified According to an Economic Analysis
§1.04 CONCLUSION
Chapter 2 Identifying the Market for Arbitrators
§2.01 INTRODUCTION
§2.02 THE EXISTENCE OF A MARKET FOR ARBITRATORS
[A] The Professional Exercise of the Arbitrator's Function According to the Sociological and Legal Approach
[1] The Arbitrators' Professionalism According to Different Sociological Aspects
[a] The Convincing Exercise of the Function with High Knowledge
[b] The Occupation by Which People Make Their Living
[c] The Group of Persons Practicing the Same Activity as a Social Corporation or Professional Group
[2] Evidence of the Function's Professionalization According to a Legal Approach
[a] The Arbitrator's Professional Legal Liability
[b] The Regulation of the Arbitrators
[B] The Evidence of a Market for Arbitrators According to an Economic Approach
[1] Arbitrator's Extensive Marketing Strategies
[2] Market Specialization and Submarkets
[a] The Submarket for Arbitrators According to Different Industries
[b] Arbitrator Submarket According to Specific Legal Positions
[3] Outsourcing in the Market for Arbitrators
[4] Market Speculation
§2.03 THE ELEMENTS OF THE MARKET FOR ARBITRATORS
[A] The Demand
[1] The Consumers of the Arbitrator's Function
[2] The Economic Rationale Behind the Demand
[a] The Reduction of Transaction Costs Directly Related to the Arbitrator's Function
[b] The Reduction of the Transaction Costs Disconnected from the Arbitrator's Function
[B] The Supply
[1] The Delimitation of Supply
[a] Widely Adopted Preconditions
[b] Exceptions
[c] The Explanation for the Lack of Restrictions
[2] Who Are the Suppliers?
§2.04 CONCLUSION
Chapter 3 The Impossibility of Verifying Equilibrium in the Market for Arbitrators
§3.01 INTRODUCTION
§3.02 PARTICULARITIES OF THE PRICE ELASTICITY OF SUPPLY
[A] The Peculiarity of Price Determination in the Market for Arbitrators
[1] The Lack of Harmonization Regarding Price Determination
[a] The Methods of Price Determination
[b] Who Determines the Arbitrator's Remuneration?
[i] By the Parties
[ii] By the Arbitral Institution
[iii] By the Judge
[iv] By the Arbitrator
[2] The Moment of Price Determination and Its Effects on Price Elasticity
[a] Before the Formation of the Arbitrator's Contract
[b] After the Formation of the Arbitrator's Contract
[c] The Influence of Time in the Elasticity of Supply
[3] The Review of the Arbitrator's Fees by the Judge
[B] Price and Demand Ignorance by the Offerors Does Not Prevent Oversupply
[1] The Legal Explanation for the Price Ignorance
[2] The Theoretical Oversupply
[a] Anyone May Offer Arbitrator's Services
[b] The Cost of Becoming a Supplier Is Apparently Reduced
[c] Publication of Price
[3] The False Oversupply
[a] Supply Determination Depends on the Effective Acceptance of the Mission
[b] The Logic of Trust-and Quality-Considerably Reduces Supply
§3.03 ELEMENTS THAT AFFECT THE ELASTICITY OF DEMAND
[A] The Existence of Substitutes and the Cross-Elasticity
[1] Substitutes for the Arbitrator's Function
[a] The Identification of Substitutes According to a Legal Approach
[b] The Identification of Substitutes According to the Economic Approach
[2] Cross-Elasticity
[B] Other Limitations of the Price Elasticity of Demand
[1] Parties Do Not Seek the Cheapest Arbitrator
[2] Parties Do Not Effectively Consider the Price of the Function on the Arbitration Agreement
[a] The Parties Do Not Consider Price Because It Is Simply Not Possible at the Moment of Consent to Arbitration
[b] Parties May Not Consider the Price of the Arbitrator's Function Because of Opportunistic Behavior
[c] The Price of the Arbitrator's Function May Not Be Significant Among Total Costs
§3.04 CONCLUSION
Chapter 4 The Imperfections of the Market for Arbitrators
§4.01 INTRODUCTION
§4.02 THE MARKET FOR ARBITRATORS FAILURES
[A] Structural Barriers to Entry
[B] Information Asymmetry
[1] Sources of Asymmetric Information in the Market for Arbitrators
[a] Restriction on the Access to Information
[b] Market Signaling: The Most Available Information Regarding Arbitrator's Quality
[2] The Inefficiency Generated by Asymmetric Information in the Market for Arbitrators
[a] Reinforcement of Barriers to Entry
[b] The Cost of Dishonesty
[C] Opportunistic Behavior as a Market Failure (Agency Theory Applied)
[1] The Opportunistic Behavior in the Parties-Arbitrator Sui Generis Relationship
[2] Identification of Costs Associated with Opportunistic Behavior
[a] Monitoring Costs
[b] Bonding Costs
[c] Residual Loss
[d] Moral Hazard
[D] Bounded Rationality
[1] The Explanations for the Fact That Parties Do Not Choose Arbitration
[a] The Parties' Tendency Toward the Status Quo and Anticipated Regret
[b] Reactive Devaluation
[2] Explanations for the Fact That Parties Will Not Choose the Most Efficient Candidate
[a] Loss Aversion
[b] The Parties' Tendency Toward Optimism
§4.03 ANTICOMPETITIVE CONDUCTS IN THE MARKET FOR ARBITRATORS
[A] Artificial Barriers to Entry: The Lists of Arbitrators
[1] Do Lists of Arbitrators Constitute Artificial Barriers to Entry?
[2] Should Lists of Arbitrators Be Regulated?
[a] Economic Arguments for and Against Closed Lists of Arbitrators
[b] Positive Law Position and Regulation Propositions
[B] Tacit Collusion in the Market for Arbitrators
§4.04 CONCLUSION
Part II The Arbitrator: An Economic Actor
Chapter 5 The Rational Decision-Maker Arbitrator: Unveiling the Arbitrator's Utility Function
§5.01 INTRODUCTION
§5.02 THE ARBITRATOR'S POSITIVE MOTIVATIONS
[A] Patrimonial Motivation
[1] The Current Remuneration
[a] Definition of Remuneration as Arbitrators' Motivation
[i] What Is the Arbitrator's Remuneration?
[ii] Special Characteristics of the Arbitrator's Contract That Affects Remuneration
[b] Challenging Counterarguments Against Remuneration as the Main Incentive in the Arbitrator's Utility Function
[c] Future Compensation: Dependence upon Reputation and Social Capital
[B] Non-patrimonial Incentives
[1] Honor, Prestige, and Ideological Satisfaction
[2] Power
§5.03 THE CONSTRAINTS ON THE ARBITRATOR'S UTILITY FUNCTION
[A] Social Norms or Market Constraints
[1] Patrimonial Constraints
[a] Immediate Patrimonial Constraints Imposed by Social Norms or the Market
[b] Mediate Patrimonial Constraints Caused by Social and Market Norms
[i] The Diffusion of Information About the Arbitrator's Behavior
[ii] Disciplinary Sanctions from Institutions
[iii] Performance Control
[2] Moral and Psychological Constraints
[a] Mental Effort
[b] Moral Costs
[B] Constraints Imposed by the Law
[1] The Immunity of Arbitrators
[2] The Constraints Imposed by the Law on the Arbitrator's Patrimony
[a] Immediate Constraints on the Arbitrator's Patrimony
[i] Termination of the Arbitrator's Contract
[ii] Civil Liability of Arbitrators
[b] Mediate Constraints on the Arbitrator's Patrimony
[i] Obligations Imposed by Arbitration Laws, the Personal Law, and the Arbitrator's Contract That Could Affect an Arbitrator's Future Appointments
[ii] Administrative and Criminal Sanctions on the Arbitrators' Capacity to Exercise the Function
[3] The Non-patrimonial Legal Constraints
[a] Criminal Law Constraints on the Arbitrator Behavior Intended to Protect the Procedure
[b] Criminal Law Constraints on the Arbitrator's Behavior to Guarantee Proper Behavior of the Parties
§5.04 CONCLUSION
Chapter 6 Arbitrators' Strategic Behavior: The Rational Choice Theory at Stake
§6.01 INTRODUCTION
§6.02 THE ARBITRATOR'S STRATEGIC BEHAVIOR IN RELATION TO THE PARTIES TO THE ARBITRATOR'S CONTRACT
[A] Arbitrator's Strategic Behavior Regarding the Litigants
[1] The Split-The-Baby Strategy
[a] The Economic Reasons for the Split-the-Baby Strategy
[i] The Strategy of Appearing Fair in the Eyes of the Parties
[ii] The Split-the-Baby Strategy as a Request of the Parties
[b] The Lack of Evidence of Split-the-Baby Behavior
[2] The Tendency to Defend a Specific Class of Litigants or Legal Position
[a] The Rationale for Systematically Supporting a Class of Litigants or a Specific Legal Position
[b] The Evidence of the Behavior of Systematically Defending a Class or a Specific Legal Position
[B] The Arbitrator's Strategy Before Arbitral Institutions
[1] The Arbitrator's Behavior and the Power of the Institutions' Authority
[a] The Source of Arbitral Institutions' Appointing Authority Power
[i] The Appointing Authority Power
[ii] The Confirming Authority Power
[b] The Arbitrator's Strategy Regarding Appointing Authorities
[2] The Peculiarities in the Arbitrator-Institution Relationship
[a] The Possible Agency Conflict from Those Who Are the Institution's Appointing Authority
[b] The Existence of the List of Arbitrators
[c] Institutions Do Not Appoint Most Arbitrators
[d] The Profit or Nonprofit Institutions' Nature
[C] The Problem of the Arbitrator's Strategy and the Attempt for Solutions
[1] Central Criticisms of the Unilateral Appointment of Arbitrators
[a] Identification of the Problem: Selection Bias
[b] Excluding Unilateral Appointments: Possible Solution?
[2] Possible Solutions to Reduce Strategic Behavior if Unilateral Appointments Are to Be Maintained
[a] Arguments in Favor of Unilateral Appointments
[i] Unilateral Appointments Are a Consolidated Right of the Parties
[ii] Unilateral Appointment Is the Parties' Preferred System
[iii] The High Costs of Changing the Practice
[iv] The Importance of Culture and Background
[v] A Matter of Trust
[vi] Opportunity to Choose an Expert Arbitrator Who Would Think Like the Party
[vii] There Are Already Mechanisms to Avoid Selection Bias
[b] The Proposition to Reduce Undesirable Strategic Behavior
[i] The Solution to Increase Competition in the Market Is Not Effective
[ii] Imposing Effective Control Procedures on Arbitrators
[iii] The Solution of Ignorance of the Appointment
[iv] Party Autonomy and Market Freedom: A Solution?
§6.03 INTERACTION WITH OTHER ACTORS IN THE ARBITRATION MARKET
[A] The Arbitrators' Strategic Behavior with Respect to Other Lawyers in the Market for Arbitrators
[1] The Other Arbitrators
[a] The Strategy of Strengthening Intra-Network Marketing
[b] The "Love-All" Strategy
[c] The Support of Other More Aggressive Strategies
[2] Arbitrator's Strategy Regarding the Parties' Counsel
[a] The Arbitrators' Strategic Behaviors with Respect to Lawyers
[i] Lawyers Who Will Continue to Be Lawyers
[ii] Lawyers Who Will Be Arbitrators in the Future
[b] The Sources and Possible Solutions to Undesirable Strategic Behavior
[i] The Double-Hat Dilemma and the Proposed Solution
[ii] The Problem of Repeated Appointments and the Proposed Solution
[B] The Arbitrators' Strategic Behavior in Relation to Third Parties
[1] The Arbitrators' Strategic Behavior with Respect to Third-Party Funders
[a] Incentives on Arbitrator's Behavior in the Presence of Third-Party Funders
[b] The Regulation of Funding Agreements in Order to Avoid Arbitrator's Strategic Behavior
[2] The Arbitrators' Strategic Behavior Regarding Judges
[a] The Arbitrator's Strategic Behavior with Respect to the Judge as Appointing Authority
[b] The Arbitrator's Strategic Behavior with Respect to the Judge Acting as Confirming Authority
[c] The Arbitrator's Strategic Behavior with Respect to the Judge as the Authority that Controls the Arbitrator's Function
§6.04 CONCLUSION
Chapter 7 The Limitation of the Rationality of Arbitrators
§7.01 INTRODUCTION
§7.02 THE COGNITIVE LIMITATIONS OF THE ARBITRATOR
[A] The Exercise of Intuition by the Arbitrator
[1] The Role of Intuition in the Arbitrator's Decision-Making
[a] The Role of Intuition in the Arbitrator's Decision-Making Process
[b] Evidence of the Use of Intuition in the Arbitrator's Decision
[2] The Consequences of Intuition in the Arbitrator's Function
[a] The Negatives Consequences of Intuition on the Arbitrator's Decision-Making
[b] The Positive Consequences of Intuition on the Arbitrator's Function
[B] The Arbitrator's Cognitive Biases and Heuristics
[1] Extremeness Aversion
[2] Anchoring
[3] Loss Aversion
[4] Availability Heuristic
[5] The Optimistic Bias
[6] Tendency to Maintain the Status Quo
[7] Hindsight Bias
§7.03 THE LIMITATIONS OF RATIONALITY CAUSED BY EXTERNAL INFLUENCES
[A] Emotions and Pro-social Behaviors of the Arbitrator
[1] The Role of Emotions
[a] The Emotions as a Trigger of Influences on the Decision-Maker
[b] The Arbitrator's Potential Answers to Emotion
[2] The Role of Altruistic Behavior
[a] The Reasons Why Individuals Adopt Altruistic Behaviors
[b] Evidence of the Arbitrator's Altruistic Behavior
[B] Social and Cultural Influences
[1] Social or Cultural Influences
[a] How Do Such Influences Take Place?
[b] Evidence of Social or Cultural Influences
[2] Affiliation Bias as a Limitation of the Arbitrator's Rationality
[a] Understanding Affiliation Bias
[b] The Evidence of Reciprocity in the Arbitrator's Behavior
§7.04 CONCLUSION
Chapter 8 Freeing the Arbitrator from Limited Rationality: Some Proposed Solutions
§8.01 INTRODUCTION
§8.02 THE CORRECTION AND PREVENTION OF THE LIMITATION OF RATIONALITY AMONG ARBITRATORS
[A] Motivational Strategies
[1] Increasing Incentives
[2] The Modification of the Arbitrator's Liability
[a] Inopportunity to Change the Regime of Arbitrators' Liability
[b] Myth of the Arbitrator's Social Accountability
[B] Cognitive Strategies
[1] The Cognitive Strategies on the Arbitrator
[a] Training and Education in Economics and Cognitive Psychology
[b] Reducing Information Asymmetries
[c] The Strategy to Consider the Opposite
[d] Using Other Biases to Correct Biases
[e] Increasing the Obligation to Reason the Award
[f] Facilitate the Arbitrator's Life
[g] Group Decisions
[h] Appointing Arbitrators Who Are Not Native on the Language of the Arbitration
[i] The Addition by the Arbitral Tribunal of Techniques to Certify Better Legal Reasoning
[j] Controlling the Party's Representative and Counsel
[k] Taking Care of the Arbitrator's Comfort
[l] Blind Decisions as a Form of Correction
[2] Strategies to Be Imposed on Other Agents in the Arbitration
[a] Parties' Agreement to Limit Extreme Claims and Anchors
[b] Appointing Arbitrators Who Understand Their Limitations
§8.03 THE OPPORTUNITY OF SOLUTIONS TO THE RATIONALITY LIMITATION OF ARBITRATORS
[A] Particularities of the Arbitrator's Function That Affect Prevention and Correction
[1] Arbitrators Already Have Enough Incentive to Avoid Unconscious Bias
[2] The Experience and Seniority of the Arbitrators
[B] The Limitation of Rationality and Efficiency: A Matter of Costs
[1] The Benefits of Prevention and Correction of Limitations
[2] The Costs of Preventive and Corrective Strategies
[a] The Transaction Costs of Preventing and Correcting System 1
[b] Putting Strategies in Practice Is Expensive
[C] Should the Pro-social Motivation of the Arbitrator Be Corrected?
[1] The Altruistic Arbitrator Who Carries out the Function Pro Bono
[a] The Danger of Having Personal Motivations
[b] The Hypothesis of the Pro Bono Function in the Presence of a Party Affected by Impecuniosity
[2] Should the Arbitrator's Altruistic Behavior Toward Wealth Distribution Be Controlled?
[a] The Inefficiency Created by the Arbitrator in Trade
[b] The Negative Externalities in the Market for Arbitrators
§8.04 CONCLUSION
General Conclusion
Appendices
Appendix 1: Questionnaire for Experienced Arbitrators: Interviews
Appendix 2: Prospective Arbitrators Survey
Bibliography
Table of Cases
Index
INTERNATIONAL ARBITRATION LAW LIBRARY

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