The Rise of Transparency in International Arbitration - Chapter 3 - The Case for the Publication of Arbitration Awards
ALEXIS MOURRE is a member of the Arbitral Council of the Chamber of Arbitration of Milan, Vice-President of the ICC International Court of Arbitration, and founding Partner of Castaldi Mourre & Partners, Pa
The case for the publication of arbitration awards was made thirty years ago by Julian D. M. Lew.2 The conclusion reached by the author was that:
[T]he publication of arbitration awards would […] identify the real advantages of arbitration: specialist and expert arbitrators operating on the international level. The development of an arbitral case law would give to arbitration a greater certainty than that presently existing with respect to the probable attitude of the arbitrators,and would facilitate the commercial world’s knowledge and acceptance of the lex mercatoria. This would almost certainly obviate many recurring problems presented to arbitrators,and would influence the negotiating attitudes and commercial decisions of businessmen. Above all, the systematic publication of arbitral awards would show that not only is arbitration an laternative to national courts as a system of dispute settlement, but it would prove conclusively that arbitration is the most appropriate forum in which to resolve disputes arising out of international commerce.3
Julian Lew's opinion certainly embodies many different and pregnant perspectives: legal certainty and predictability is one. Permitting international arbitrators to seek guidance in past cases is another. Finally, the idea that publication of arbitration awards would facilitate the development and acceptance of the lex mercatoria is still a fertile ground for debate. Is the case made by Julian Lew twenty-five years ago still valid today? At the core of the issue is the difficult question of precedent in international commercial arbitration, the answer to which is in turn dependent on different philosophical conceptions of that means of dispute resolution. Do international arbitrators apply the law chosen by the parties in the same way a national court would do? Or is international arbitration a free-standing system of international justice relying on a body of legal rules of its own? Are international arbitrators only concerned with the case before them, or do they feel compelled to adhere to past arbitral solutions for the sake of consistency? In sum, is arbitral jurisprudence anything more than a dream or an excuse?