Originally from: Towards a Uniform International Arbitration Law?

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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.