The Ethos of Arbitration

Abstract

This chapter describes the ethos of arbitration. It first distinguishes between two well-known schools of thought regarding how legal decision-makers make decisions, how judges and arbitrators decide cases. It also looks at legal formalism and legal realism, at justification and decision-making, and at rules and ethos. Ultimately, the chapter argues that the ethos of arbitration plays a role in the decisions that arbitration produces. However, this ethos is not necessarily one that is suited for all the different types of parties and disputes that arbitration has come to cover. It also may not be one that current political societies will necessarily condone now that they are becoming aware of it. Moreover, it probably is even damaging for the arbitration industry in the longer run.