Splitting the Baby

Irene Ten Cate*

Compromise outcomes in international commercial arbitration are widely derided as “baby-splitting.”  Yet it turns out to be surprisingly hard to articulate what it is that makes such outcomes problematic.  In this Article, I first identify what makes an outcome a compromise and situate compromise outcomes in the intra-tribunal dynamics shaped by arbitrator selection, arbitration rules regarding awards, and concerns about the legitimacy of non-unanimous awards.  I then argue that while the argument for compromise outcomes as an appropriate answer to hard cases is compelling, a strong norm against such solutions is still warranted to promote the quality of arbitral judging.  The option to compromise interferes with individual and collective deliberation by solidifying early judgments and injecting strategic considerations into the tribunal’s discussions.  These flaws, in turn, taint the outcome and reasoning.  Instead of providing an opportunity for continued assessment of the case, drafting the award becomes an exercise in justifying a result that none of the arbitrators believes to be correct.  Even if a compromise award ends up being doctrinally coherent, much of the value that comes from multi-arbitrator judging will have been destroyed in the process.

 * Assistant Professor of Legal Writing and Associate Director of the Block Center for International Business Law, Brooklyn Law School.  I am indebted to Jorge Contesse, Alan Scott Rau, Freddy Sourgens, Maria Termini, and participants in the ASIL Midyear Forum, the Brooklyn International Business Law Scholars Roundtable, and faculty workshops at Brooklyn Law School, Rutgers Law School, and the University of Houston Law Center for thoughtful feedback.  I am grateful to Jean Davis and Chris Dykes for excellent library assistance and to Brooklyn Law School and the University of Houston Law Center for summer research support.  My thinking about this Article continued to evolve through the editing process, and I thank the Journal’s fantastic editors, including Christina Schiciano, Josef Danczuk, Graham Glusman, and Alex Potcovaru, for their engagement, diligence, and patience.  Special thanks to Head Articles Editor Ruth Schapiro for pushing me to think harder.