Precedent in International Arbitration
Published in 2008
Book
Hardback
580 pages
978-1-933833-14-9 (ISBN)
Description
Arbitrators routinely refer in their decisions to awards rendered by other arbitral tribunals that deal with the same issues. However natural it may seem to arbitrators and to parties who will refer to arbitral precedents in an attempt to support their position, such an approach raises many practical and theoretical questions. Is there such a thing as arbitral precedent? What weight should arbitrators give to decisions previously rendered by other arbitral tribunals? Can arbitral "case law" exist without consistency? Does such consistency exist? Is it necessary or simply desirable? What is the respective weight to be given to arbitral and national case law when arbitrators have to decide a case in accordance with a given law? These are some of the questions that this book explores, in the context of both international commercial arbitration and investment arbitration.
More details
Persons
Emmanuel Gaillard, Chairman of the IAI, is acknowledged as one of the world leading experts on international arbitration. He has written extensively on all aspects of international arbitration law, in French and in English. He is a co-author of Fouchard Gaillard Goldman On International Arbitration, the leading and most exhaustive publication in this field. Emmanuel Gaillard teaches International Arbitration and Private International Law at the University of Paris XII. He has acted as arbitrator, counsel and expert in over 250 international arbitration proceedings and Chair of Shearman & Sterling's International Arbitration practice.
Yas Banifatemi, Partner, Shearman & Sterling LLP, International Arbitration Practice Group, Paris.
Yas Banifatemi, Partner, Shearman & Sterling LLP, International Arbitration Practice Group, Paris.
Content
Foreword
Emmanuel Gaillard
Definition of "precedent"
Barton Legum
Part I - International Commercial Arbitration
Introductory Note
Karl-Heinz Böckstiegel
Is there a Need for Consistency in International Commercial Arbitration?
François Perret
The Impact of the Confidentiality of Awards
Alexis Mourre
The Development of a Case Law in Construction Disputes Relating to FIDIC Contracts
Christopher Seppala
Part II - International Investment Arbitration
Introductory Note
Prosper Weil
Similarity of Issues in Disputes Arising under the Same or Similarly Drafted Investment Treaties
James Crawford
Can Arbitral Awards Constitute a Source of International Law under Article 38 of the ICJ Statute?
Judge Gilbert Guillaume
The Impact of the Publication of Awards
Thomas Wälde
Is the Search of Consistency a Myth?
Gabrielle Kaufmann-Kohler
APPENDICES
Annex 1
ICSID Case No. ARB/02/17, AES Corporation v. The Argentine Republic, Decision on Jurisdiction dated April 25, 2005 (English original)
Annex 2
ICSID Case No. ARB/05/07, Saipem S.p.A. v. The People's Republic of Bangladesh, Decision on Jurisdiction and Recommendation on Provisional Measures dated March 21, 2007 (English original)
Annex 3
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (French original)
Annex 4
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (excerpt translated into English)
Annex 5
Statute of the International Court of Justice (Articles 38 and 59)
Annex 6
Cross-References in Arbitral Case Law: Salient Topics
INDEX
Emmanuel Gaillard
Definition of "precedent"
Barton Legum
Part I - International Commercial Arbitration
Introductory Note
Karl-Heinz Böckstiegel
Is there a Need for Consistency in International Commercial Arbitration?
François Perret
The Impact of the Confidentiality of Awards
Alexis Mourre
The Development of a Case Law in Construction Disputes Relating to FIDIC Contracts
Christopher Seppala
Part II - International Investment Arbitration
Introductory Note
Prosper Weil
Similarity of Issues in Disputes Arising under the Same or Similarly Drafted Investment Treaties
James Crawford
Can Arbitral Awards Constitute a Source of International Law under Article 38 of the ICJ Statute?
Judge Gilbert Guillaume
The Impact of the Publication of Awards
Thomas Wälde
Is the Search of Consistency a Myth?
Gabrielle Kaufmann-Kohler
APPENDICES
Annex 1
ICSID Case No. ARB/02/17, AES Corporation v. The Argentine Republic, Decision on Jurisdiction dated April 25, 2005 (English original)
Annex 2
ICSID Case No. ARB/05/07, Saipem S.p.A. v. The People's Republic of Bangladesh, Decision on Jurisdiction and Recommendation on Provisional Measures dated March 21, 2007 (English original)
Annex 3
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (French original)
Annex 4
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (excerpt translated into English)
Annex 5
Statute of the International Court of Justice (Articles 38 and 59)
Annex 6
Cross-References in Arbitral Case Law: Salient Topics
INDEX