Download This PaperSplitting the Baby
50 Pages Posted: 8 Nov 2022 Last revised: 9 Sep 2023
Date Written: November 6, 2022
Abstract
Compromise outcomes in international commercial arbitration are widely derided as “baby splitting.” Yet it turns out to be surprisingly hard to articulate what it is that makes such outcomes problematic. In this Article, I first identify what makes an outcome a compromise and situate compromise outcomes in the intra-tribunal dynamics shaped by arbitrator selection, arbitration rules regarding awards, and concerns about the legitimacy of non-unanimous awards. I then argue that while the argument for compromise outcomes as an appropriate answer to hard cases is compelling, a strong norm against such solutions is still warranted to promote the quality of arbitral judging. The option to compromise interferes with individual and collective deliberation by solidifying early judgments and injecting strategic considerations into the tribunal’s discussions. These flaws, in turn, taint the outcome and reasoning. Instead of providing an opportunity for continued assessment of the case, drafting the award becomes an exercise in justifying a result that none of the arbitrators believes to be correct. Even if a compromise award ends up being doctrinally coherent, much of the value that comes from multi-arbitrator judging will have been destroyed in the process.
Keywords: international arbitration; international dispute resolution; international commercial arbitration; commercial disputes; judging; international adjudication
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