Originally from: Precedent in International Arbitration

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To set out the question is to answer it; obviously, the absence of conflicting decisions on the same issue is a requisite in view of ensuring the security of legal relationships. But how and to what extent can we achieve this goal in international arbitration? In other words, can we transpose the notion of precedent in the true sense of the word into arbitration? This is the question to be addressed herein. Precedent has been defined as a series of consistent decisions on a given question of law,1 and that implies that their ratio decidendi is not limited to a specific dispute. In this regard, one should distinguish the decisions that enunciate a rule that may be applied to future cases of the same kind (arrêts de principe), from those in which the ruling does not extend beyond the specificity of the dispute at hand (arrêts d’espèce).2

Yet, it has been said that arbitral awards should only give a concrete and pragmatic solution to difficulties encountered by actors in international commerce, and thus do not have to contribute to the formation of the law which in any case is not the primary concern of such agents of the economic life.