As arbitration’s publicity has increased in recent years, its public perception as a legitimate tool for international dispute resolution has decidedly decreased. Many condemn arbitration for lacking legitimacy, and being susceptible to bias and intransparency. For practitioners, however, such concerns will likely appear misguided, with a risk that they dangerously conflate otherwise separate notions of investment and commercial arbitration. Part of the problem may be that those criticising arbitration do so on the basis of misinformation and in response to emotionally charged rhetoric: problems potentially associated with the so-called ‘post-truth’ era. The question then becomes: what can be done to protect arbitration as a legitimate means of dispute resolution?
This article considers how the post-truth era poses a threat to arbitration as a mechanism for resolving international disputes. It focuses in particular on the differences between investment and commercial arbitration, and how they seek to fulfil different purposes. Reflecting on its origins on the one hand and its role in a globalised world on the other, the article looks at how arbitration is striving to enhance its public image and, importantly, how the arbitration community can defend itself in the face of criticism, however unfounded.
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