The “black box” of the human mind is explored less than many people would guess and much less than it deserves. Even scientists specialising in this sphere have very limited knowledge about how thoughts are processed and how decisions are made. One of the means to obtaining an insight into this deep and mysterious process is the observation of repeating patterns of irrational behaviour that many people often follow. The process is two-way: on the one hand, the fact of human irrationality makes it possible to construct thought “road-maps”, on the other hand, an understanding of thinking processes allows us to predict and to some extent to avoid irrationality.
Rational decision-making is crucial for the functioning of many aspects of human society including dispute resolution. The progress made from trial by battle to international arbitration cannot be overestimated, but even the latter is not completely free from non-legal influences. Subconscious biases are among them. The good news is that such biases are predictable and as such can in principle be avoided.
This article observes the most influential theories dealing with the concealed thought processes and their implications for arbitral decision-making. This is followed by a study of the CME v Czech Republic and Lauder v Czech Republic awards. These cases are based on essentially the same factual and legal background but, nevertheless, the tribunals’ decisions are vastly different. The theoretical background is applied to the pair of awards and hypotheses are made that subconscious biases might have to a certain extent conditioned the discrepancies in the outcomes.Arbitration: The International Journal of Arbitration, Mediation and Dispute Management