Investor-State Arbitrators’ Duties to Non-Parties

by Perry S. Bechky

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Abstract

The notion that arbitrators owe duties to the parties in investor-state disputes is familiar. This article explores less-trodden terrain. It argues that, notwithstanding the party-centric norms of arbitration, investment arbitrators also owe duties to non-parties. It begins by establishing a beachhead – a clear example of a duty to a non-party, as a proof of concept – before moving into rougher territory. The article catalogs and surveys various duties owed to non-parties, discussing the nature of these duties and how they are enforced. Finally, the article shows that recognizing duties to non-parties both informs a proper understanding of the investment arbitration system and may help improve that system.

Investor-State Arbitrators’ Duties to Non-Parties

by Perry S. Bechky

Click here for a PDF file of this article

Abstract

The notion that arbitrators owe duties to the parties in investor-state disputes is familiar. This article explores less-trodden terrain. It argues that, notwithstanding the party-centric norms of arbitration, investment arbitrators also owe duties to non-parties. It begins by establishing a beachhead – a clear example of a duty to a non-party, as a proof of concept – before moving into rougher territory. The article catalogs and surveys various duties owed to non-parties, discussing the nature of these duties and how they are enforced. Finally, the article shows that recognizing duties to non-parties both informs a proper understanding of the investment arbitration system and may help improve that system.