Can't buy me arbitrator love? How party-appointed arbitrators help 'haves' come out ahead in sports arbitration

Abstract

Party-appointed arbitrators are a common but controversial feature of many arbitral systems. The main point of contention is whether parties can and do use their power to appoint one of the arbitrators in a way that undermines impartial, equal, and fair arbitration. While the scholarly debate on party-appointed arbitrators is old and vast, claims made have been subject to limited empirical testing. Using the Court of Arbitration for Sport as a case study, this article empirically explores the effects of arbitrator appointments on arbitration outcomes and the relevance of arbitrator experience, arbitrator attitudes, and party capability on party success. In doing so, this study finds that arbitrator experience and attitudes affect outcomes and that this can be exploited by parties when selecting arbitrators. Importantly, the study also finds that the ability to make use of this strategic opportunity depends on parties' capability. Whereas party-appointed arbitrators may be less problematic in arbitration between parties of equal capability, this finding calls into serious question the fairness and legitimacy of using party appointments in arbitration where there is a disparity in capability between the parties.