Combatting unethical behavior in international commercial arbitration: how game theory can help tackle guerrilla tactics

Abstract

This study analyzes international commercial arbitration and the phenomenon known as 'guerrilla tactics.' These behaviors emerge amidst a paradigm shift within arbitration, moving from a cooperative model to a more litigious one, driven by the entry of new players into the arbitration world. Guerrilla tactics are unethical behaviors that harm or frustrate the arbitral procedure. To understand them, this paper utilizes Robert Axelrod's 'cooperation theory', in which he analyzes non-zero-sum games, specifically the prisoner's dilemma. According to his theory, these behaviors can be considered as acts of non-cooperation because they prevent players from benefitting from arbitration. To solve this problem, Axelrod understands that it is essential to change the values of the game in order for the players to mutually benefit from cooperation. In arbitration, this primarily means creating sanctions for non-cooperative behaviors and educating the new generation about the harmfulness of guerrilla tactics. The reasoning used was deductive, and the research was developed through a bibliographic review of books, articles, and data from official institutions.