In the 1950s and 1960s, Soia Mentschikoff ran an experiment on how arbitrators actually decide. The results sat in an archive for half a century — until Kristina Klykova went looking for them.
Soia Mentschikoff, the pioneering commercial-law scholar who later served as dean of the University of Miami School of Law, spent years studying how arbitral tribunals reach decisions and build consensus. Much of what she gathered was never fully analyzed. Kristina Klykova’s article in the Journal of International Arbitration, written while she was completing the University of Miami’s LL.M. in International Arbitration, returns to those archives and asks what they can still teach.
The article examines the subjective factors that influenced the arbitrators in Mentschikoff’s study — the pressures that shaped individual judgments and the dynamics that produced agreement on a panel — and uses them to question the assumption that arbitral decision-making is objective in the way the field likes to believe. It closes by proposing an approach for future empirical research on how arbitrators decide, so that the debate about bias can rest on evidence rather than anecdote.
The questions have only grown more pressing. Arbitrator selection and disclosure are contested in nearly every major arbitration, and Kristina’s current practice — cross-border disputes, international arbitration, and regulatory matters that increasingly touch artificial intelligence — sits precisely where the old question about human bias meets the new one about bias in automated decision-making. A 2014 article about a 1960s experiment turns out to be a timely read.
The published version is behind Kluwer Law International’s subscription paywall; the University of Miami’s International Arbitration Institute lists the article among its scholars’ publications, and an earlier version appeared in the Institute’s collection of essays prepared for the 2014 Congress of the International Council for Commercial Arbitration.
Read: Bias in Arbitral Decision-Making: Rescuing the Mentschikoff Archives from a Half Century of Oblivion — Journal of International Arbitration, Vol. 31, Issue 2 (April 2014), pp. 289–315 (subscription)
Listed at: University of Miami School of Law — International Arbitration Institute publications
About Kristina Klykova
Kristina Klykova is a shareholder in the firm’s Miami office. Her practice encompasses complex cross-border disputes, international arbitration, and regulatory matters, including privacy and artificial intelligence, drawing on nearly a decade of experience representing sovereign states, multinational corporations, and leading technology platforms. A Fulbright Scholar, she earned her J.D. and an LL.M. in International Arbitration from the University of Miami School of Law and holds a master’s degree in International Law and Economics from the World Trade Institute in Switzerland.
Publication spotlights summarize work our attorneys have published elsewhere; the views expressed in the original pieces are the authors’ own. Insights posts are offered for general information and are not legal advice.
