Este documento es importante ya que trata de un estudio realizado por prestigiosos académicos de los Estados Unidos de América. El artículo da a conocer interesantes estadísticas referentes a que el arbitraje internacional mantiene el mismo nivel de imparcialidad entre Estados e inversionistas privados.
Arbitration fair on developing countries, says new research
24 June 2009
Concerns that investment treaty arbitration is biased against developing countries could be allayed following the publication of new research.
Susan Franck, the academic behind the research, says she set out to test whether investment arbitration is the equivalent of "tossing a two-headed coin", as some states may believe. Her findings appear in Development and Outcomes of Investment Treaty Arbitration which is available online here and will be published in the Harvard International Law Journal later this summer.
Franck, who is associate professor at Washington and Lee University's School of Law, examined a sample of arbitration awards looking for a statistically significant link between the development status of the respondent, the presiding arbitrator's background, and the outcome.
Franck assigned a value to the development status of respondent states by looking at whether the nation is a member of the OECD, and where it ranks in the World Bank classification system of High Income, Upper-Middle Income, Lower-Middle Income and Low Income countries. She did the same for the presiding arbitrators in 49 tribunals, according to the level of economic development in their home nation. Franck then looked for interactions that might show up in the outcomes of cases. The data came from a sample of 102 investment treaty awards in 82 cases that were publicly available before 1 June 2006.
She concludes that "there is no general statistically significant bias at this stage" between the development status of a respondent state, the presiding arbitrator's home country, and whether the state wins or loses at arbitration. "The consistency in these results offers a powerful narrative that there is procedural integrity in investment arbitration," Franck says.
At a practical level, the survey offers food for thought for counsel and arbitrators when it considers the impact of presiding arbitrators' origin, and the development status of the respondent, on the amounts awarded. In two "simple effects" the research identified a propensity for tribunals to make smaller awards against Higher Income countries, as compared to Upper-Middle Income and Low-Income countries.
But Franck warns that these effects are based on limited data, and are influenced by two cases where the awards were very low, Maffezini v Spain and ADF Group Inc v US. She says Maffezini had the lowest damages claimed amongst the data set at approximately USD$155,314 - which the respondent did not dispute.
"The results are only popping in one tiny sub-set. My guess is differences are emerging because the sample is so small, and we are only seeing a small slice of the potential population," she says.
Throughout the paper, Franck is conscious of the need to expand her data set. To ascertain the potential scope of these simple effects reliably, she predicts she would have to review 764 awards.
Assistant professor of law at Wisconsin Law School Jason Yackee, says that while Franck's research is important and allows us to tentatively conclude that there is no obvious evidence of systematic unfair treatment, the investment arbitration system is still in its infancy.
"There remain a great number of investment arbitration powder kegs lying around the world, and any number of them may certainly explode in the future," says Yackee. "In particular, if the US ever finally loses an arbitration, changes to the current system will be all but inevitable. Indeed, if there is bias in the system, I think it probably goes against investors, and favours states - especially large and powerful states - who would not tolerate a loss. But Professor Franck's data is probably not extensive enough to allow us to test this theory."
Franck has told GAR that she is coding 78 new arbitration awards from the past three years to expand the research. She intends to add more variables to the data to find the average number of months between the dates when investors submit arbitration requests and when tribunals render awards, as well as looking at interest and costs.
David A Gantz, a professor of law at the University of Arizona who specialises in trade agreements, says: "There is a shortage of empirical research on arbitration outcomes, including any distinctions between outcomes based on development status. This is a major reason why Professor Franck's work is important. It should suggest to developing country governments, such as Ecuador's, that withdrawing from ICSID because of any alleged bias of the system toward developing countries is probably unjustified."
Catherine Rogers, who teaches international arbitration at Pennsylvania State University's Dickinson School of Law says: "This research is very significant because many of the claims of unfairness are based on anecdotal accounts and subjective perceptions. While these accounts and perceptions are important to consider, they also need to be measured against a more objective yardstick, both so that they can be corrected when inaccurate and so that the real sources of concern among developing countries can be identified and redressed."
She adds: "In my own view, I suspect that part of the perception gap stems from the relative shortage of high-profile arbitrators from developing countries. While this imbalance in the pool of arbitrators may be a natural by-product of the historical evolution of the system, it has the potential to cause some distorted perceptions if parties from developing countries feel under-represented. These circumstances underscore the need for arbitrators' credentials and experience to be more readily available and known, not only to a core group or insiders, but to those parties and attorneys who operate outside of the US and European centres."
Christopher R Drahozal, a professor of law at the University of Kansas, says it's too simplistic to assume that counsel need not worry about the background of the arbitrator they select. He says: "What the results suggest is that, to date, lawyers in investment arbitrations have done a good job in selecting arbitrators who do not seem to be unduly influenced by the development status of the countries involved. It may be precisely because lawyers pay attention to the background of the arbitrators that they achieve such a result."