The Impact of the Publication of Awards - Part 2 - Chapter 4 - Precedent in International Arbitration

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Precedent in International Arbitration - Hardcover

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THE IMPACT OF THE PUBLICATION OF AWARDS

By Thomas Walde

I. INTRODUCTION, QUESTION & CONTEXT

I have been asked to provide a comment on the question of the extent to which confidential awards can serve as (persuasive) precedent in arbitration. I will not deal with the issue of precedent in arbitration per se. In essence, I consider that, at least in investment arbitration, individual awards merit attention and discussion while a reasonably “settled jurisprudence” (also referred to as “jurisprudence constante” or “staendige Rechtsprechung”) creates considerable authority for subsequent tribunals. Awards should, for reasons of legitimate expectation and legal certainty and consistency, not deviate from established jurisprudence, except if there are significant new arguments and only with careful and detailed reasoning. The question posed to me, however, is if such respect and attention (or the capacity to create or rather contribute to “jurisprudence constante”) also apply to arbitral awards that are confidential, i.e., which, while available to one party in the arbitration and perhaps informally circulating in collegial networks, have not been published in one of the hard-paper or electronic publications available.

Full Table of Contents from "Precedent in International Arbitration"

Foreword
Emmanuel Gaillard

Definition of "precedent"
Barton Legum

Part I - International Commercial Arbitration

Introductory Note
Karl-Heinz Bockstiegel

Is there a Need for Consistency in International Commercial Arbitration?
Francois Perret

The Impact of the Confidentiality of Awards
Alexis Mourre

The Development of a Case Law in Construction Disputes Relating to FIDIC Contracts
Christopher Seppala

Part II - International Investment Arbitration

Introductory Note
Prosper Weil

Similarity of Issues in Disputes Arising under the Same or Similarly Drafted Investment Treaties
James Crawford

Can Arbitral Awards Constitute a Source of International Law under Article 38 of the ICJ Statute?
Judge Gilbert Guillaume

The Impact of the Publication of Awards
Thomas Walde

Is the Search of Consistency a Myth?
Gabrielle Kaufmann-Kohler

APPENDICES

Annex 1
ICSID Case No. ARB/02/17, AES Corporation v. The Argentine Republic, Decision on Jurisdiction dated April 25, 2005 (English original)

Annex 2
ICSID Case No. ARB/05/07, Saipem S.p.A. v. The People’s Republic of Bangladesh, Decision on Jurisdiction and Recommendation on Provisional Measures dated March 21, 2007 (English original)

Annex 3
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (French original)

Annex 4
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (excerpt translated into English)

Annex 5
Statute of the International Court of Justice (Articles 38 and 59)

Annex 6
Cross-References in Arbitral Case Law: Salient Topics

INDEX

Thomas Walde, Professor of Law, University of Dundee