Precedent in International Arbitration - IAI Series No. 5
Emmanuel Gaillard
Yas Banifatemi
Arbitrators and Arbitral Tribunals,
Categories of Disputes,
Investment Disputes,
Applicable Law,
International and Transnational Law,
Arbitral Awards,
Precedent,
Confidentiality and Publication,
International Institutions and Rules
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Author Detail
IAI Series No. 5
The International Arbitration Institute (IAI) series on international arbitration is a new periodic series of publications that will focus on cutting edge issues and developments in international arbitration.
About the IAI:
The International Arbitration Institute (IAI), an organization created under the auspices of the Comite Francais de l'Arbitrage (CFA), was created to promote exchanges international arbitration. The IAI is designed to promote exchanges on current issues in the field of international commercial arbitration. Its activities include the regular organization of international conferences, colloquiums, as well as conducting various research projects.
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.
PDF of Title Page and T.O.C.
Definition of "precedent"
Barton Legum
Part I - International Commercial Arbitration
Karl-Heinz Bockstiegel
Is there a Need for Consistency in International Commercial Arbitration?
Francois 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
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 Walde
Is the Search of Consistency a Myth?
Gabrielle Kaufmann-Kohler
Annex 1
ICSID Case No. ARB/02/17, AES Corporation v. The Argentine Republic, Decision on Jurisdiction dated April 25, 2005 (English original)
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)
ICSID Case No. ARB/98/2, Victor Pey Casado and Presidente Allende Foundation v. Republic of Chile, Award dated May 8, 2008 (French original)
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)
Statute of the International Court of Justice (Articles 38 and 59)
Cross-References in Arbitral Case Law: Salient Topics
About the General Editor:
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.
About the Editor:
Yas Banifatemi, Partner, Shearman & Sterling LLP, International Arbitration Practice Group, Paris.
* Emmanuel Gaillard, Head of the International Arbitration Group, Shearman & Sterling LLP
* Barton Legum, Counsel, Debevoise & Plimpton LLP, Paris
* Karl-Heinz Bockstiegel, Professor of Law, University of Cologne
* Francois Perret, Professor of Law, University of Geneva
* Alexis Mourre, Partner, Castaldi Mourre & Partners, Paris
* Christopher Seppala, Partner, White & Case LLP, Paris
* Prosper Weil, Emeritus Professor of Law, University of Pantheon-Assas (Paris II)
* James Crawford, Whewell Professor of International Law, University of Cambridge; Barrister Member Chambers
* Judge Gilbert Guillaume, Former President, International Court of Justice
* Thomas Walde, Professor of Law, University of Dundee
* Gabrielle Kaufmann-Kohler, Partner, Levy Kaufmann-Kohler; Professor of Law, Geneva University
"For both practitioners and academics in the field of international arbitration, this book is essential reading as it captures contemporary thinking on the evolution of precedent (a word fraught with nuances, differences and subtleties across national legal systems, even those rooted in the common law tradition) in the international arbitration environment. For the practitioner or academic in the future, this book will be an important study in the overall continuum of precedent. For the practitioner or academic in the present, this book is essential reading for the 'where we are now.'"
-Klaus Reichert, Brick Court Chambers, London
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