Originally From:
Towards A Uniform International Arbitration Law? Hardcover
Towards A Uniform International Arbitration Law? Electronic
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Consistency of Awards in Cases of
Parallel Proceedings Concerning
Related Subject Matters
D. Brian King ∗
I. INTRODUCTION
It is usual to assume that any legitimate legal order should
ensure predictability of judicial decision-making. Rules of law are
expected to yield consistent results in similar situations.
Moreover, while legal realists might beg to differ, most of us
prefer to believe that the identity of the decision-maker (and what
he or she ate for breakfast)1 should not influence the result--at
least not in an outcome-determinative way.
However difficult it may be to achieve perfect consistency
in court adjudications, that goal is even more elusive in
international arbitral decision-making, for several reasons. There
is no system of precedent obliging arbitrators to follow earlier
awards, and generally no appeal to a superior instance to overturn
aberrational results or correct errors of fact or law. There is,
furthermore, no widespread and consistent publication of decisions
and awards, so arbitrators and parties often do not know what a
previous tribunal may have decided on the same issue. The power
to consolidate arbitral proceedings is likewise more limited than in
the national courts, thus making it more likely that proceedings
arising from the same events and transactions may proceed
separately, possibly leading to divergent results. And, finally, the
very international nature of international arbitration implies a
greater breadth of perspectives on legal problems among
arbitrators than among judges in a single national court system. As
a result of these factors, arbitral decision-making is predictably less
predictable than national judicial decision-making.
D. Brian King, Partner, Freshfields Bruckhaus Deringer, Amsterdam
