Abstract

When a peace process involves contention over land boundaries, parties may consent to resolve their dispute through arbitration. Yet while tribunals resolve disputes on paper, their awards often fail to bring peace in practice. Initial consent to arbitration does not guarantee a successful outcome: once granted, consent can wax and wane, it can be delivered under duress, and it can be withdrawn as fast as it is given. This paper explores the consent management dynamics that shape — and are shaped by — the arbitral process. Drawing on scholarship from peacekeeping and relational contract theory, it develops a model that explains why consent to arbitration differs from consent to a peace process. It then applies the model to examine strategies that tribunals have used to bridge this gap. Case studies involving the Brčko District in Bosnia and Herzegovina, the Eritrea-Ethiopia Boundary Commission and the Abyei arbitration demonstrate how arbitrators manipulate procedural and substantive law to maintain consent. The three cases also offer insights into the varying success of consent management strategies. The paper plots these cases onto the model to draw lessons for future arbitrations, on the basis of one simple but crucial question: ‘who should consent to what’?