Elements of Equity in Arbitration Practice - Chapter 5 - International Arbitration Ex Aequo et Bono/Amiable Composition
The use of the arbitration practice as “source” of arbitration law presents some challenges. The lack of e a superior revision organ, in contrast to what occurs in national courts, is certainly one of them. Moreover, the fact that the vast majority of the arbitration awards have not been published impedes a more precise verification of decision trends. Although there is a growing movement to publish awards, whether in specific books or in periodicals, the public learns about only a minority of the cases.
In any case, that “publishing movement” is relevant and covers awards from the ICC, ICSID, CRCICA, maritime arbitrations, former chambers of commerce of socialist countries and some specialized arbitration institutions. In addition to the institutional efforts, the creation of new periodicals dedicated to arbitration has disseminated the publication of arbitration awards. Since the pioneers of the Journal du Droit International and Revue de l’Arbitrage to the young Revista Brasileira de Arbitragem, there is a wide array of publications that dedicate a considerable part to the publication of awards and comments thereon.
As a result, it has been noticed that more recent awards tend to look for support in the previous awards, with some sort of coordinated solutions. In spite of that important fact, it may not be stated that there is an authority, strictly speaking, of arbitral awards. The role of precedents as source of the law is a problem is still being discussed within some jurisdictions. On the field of international arbitration, there are no revising organs. Besides, international arbitration encompasses a large plurality of sources. Therefore, the debate on the authority of the awards tends to be more complex. Notwithstanding, while no similarity with the binding precedents of the common law may be seen, the arbitration practice reveals a “set of decisions,” revealing a “habit of deciding in a certain sense” that certainly has an influence on the scope of the international commercial arbitration.