Arbitrators: Umpires or Epistemic Fact-Checkers?

Key Takeaways

• ICC and IBA rules authorize arbitrators to actively gather evidence
• Counsel favor umpire arbitrators to retain control over case strategy
• Epistemic arbitrators improve factual accuracy, reducing bias from selective evidence
• Tribunal chairs often resist epistemic methods, limiting fact‑checking
• Promoting epistemic attitudes can boost confidence in arbitration outcomes

Pulse Analysis

Arbitration has long been praised for its flexibility, yet the role of the arbitrator in fact‑finding remains contested. Legal scholars trace the "umpire" model to Roscoe Pound’s sporting theory, which envisions judges as neutral referees who merely enforce procedural rules. By contrast, the epistemic fact‑checker model, championed by scholars like Michel Taruffo, insists that truth‑seeking is a prerequisite for justice. Modern arbitration frameworks, such as Article 25.1 of the ICC Rules and IBA evidence provisions, explicitly grant tribunals the authority to collect and assess evidence beyond the parties’ submissions, signaling an institutional endorsement of proactive fact‑finding.

Despite these formal powers, the market dynamics of arbitration favor the umpire approach. Large law firms often select arbitrators who will not challenge their narrative, preserving control over the litigation strategy and avoiding surprise findings. Within tribunals, chairs who adopt a passive stance can marginalize epistemic colleagues, leading to a de‑facto dominance of the umpire style. Cultural inertia also plays a role; many arbitrators internalize traditional burden‑of‑proof doctrines that discourage active inquiry. Coupled with heavy caseloads, these pressures create a self‑reinforcing cycle where proactive fact‑checking is seen as risky or inefficient.

The consequences extend beyond individual cases. When arbitrators prioritize passive adjudication, the risk of incomplete or biased fact patterns rises, potentially undermining award enforceability and eroding stakeholder trust. Embracing an epistemic mindset can mitigate these risks by ensuring that decisions rest on a comprehensive factual foundation, thereby enhancing the legitimacy of arbitration in the eyes of courts, investors, and multinational corporations. Industry bodies might consider clearer guidelines, training, and incentives to encourage fact‑checking practices, aligning procedural norms with the substantive justice goals that underpin modern dispute resolution.