The Role of Precedent in International Arbitration Cover Image

The Role of Precedent in International Arbitration
The Role of Precedent in International Arbitration

Author(s): Ingrid A. Müller
Subject(s): Law, Constitution, Jurisprudence, Civil Law, International Law, Commercial Law, Court case
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: case law; international arbitration; confidentiality; privacy; party autonomy; common law; civil law; persuasive/mandatory authority; precedent;
Summary/Abstract: Given the characteristics of arbitration as an alternative dispute resolution method ― among those most relevant here being the confidentiality/privacy of the procedure and party autonomy ― do previous cases have a legitimate role in deciding a dispute? And, if so, should they play an important part in the economy of the decision? Are previous awards only persuasive authority or could Arbitral Tribunals be compelled to follow the reasoning of (certain) previous arbitral awards? The answer is not clearcut. Some Arbitral Tribunals seem to give weight to the wide adoption of a certain award. Other, seem to be influenced by their own legal background (if any) in giving more or less weight to previous cases considering that civil law and common law approaches to case law are different. The applicable law, as per the parties’ choice, is an issue too. And there is also the matter of the accessibility of the awards, which depends on the type of arbitration. As a matter of public interest, for investment arbitrations there are more awards available than in commercial arbitrations (given the inherent “cone of silence” surrounding the more private latter procedure). So, which of these factors should matter more? The objective of this present paper is not necessarily to give a definite answer, but rather to raise awareness on the issue for it to be properly addressed and considered by the parties to an arbitration, beforehand.