Originally from: Precedent in International Arbitration

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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.