The Alleged Failure of Arbitration toAddress Due Process Concerns: IsArbitration under Attack?

Abstract

Arbitration is a mechanism for settling disputes that has gained considerable success, first in international commercial disputes and later in investor-state disputes. More recently, both types of arbitration, but especially investment arbitration, have been exposed to harsh criticism.
         Both types of arbitration are facing an erosion of their credibility, mainly based on doubts about the lack of efficiency in the proceedings, the impartiality and independence of the arbitrators and suspicions about the ability to accurately apply the law. To a large extent, these doubts are based on perceptions or misperceptions, rather than on factual circumstances. With reference to the main issues for which arbitration is being criticized, this chapter explores whether there is reason to fear that the institution of arbitration is not compatible with the principle of due process.