ABSTRACT
This essay explores the contentious issue of applying the doctrine of precedent in international arbitration, arguing that its integration could diminish arbitration’s core advantages such as flexibility, party autonomy, and confidentiality. Through a detailed examination, the essay discusses how the inclusion of precedent might lead arbitration to mimic litigation’s rigidity, potentially undermining its appeal as a flexible and confidential dispute resolution method. Citing various legal instruments and cases, the paper highlights the lack of statutory support for binding precedents in arbitration. Furthermore, it argues that the varied nature of international legal frameworks and the private essence of arbitration agreements resist the formal adoption of precedent. Despite these arguments against precedent, the essay acknowledges the occasional reference to past decisions within arbitral awards to ensure consistency and predictability. Nonetheless, the acknowledgement is rebutted with practical difficulty in enforcing such a system of binding precedent. Having observed the pros and cons of binding precedent in arbitration, this essay arrives at a conclusion that the binding precedent should not be applied to arbitration, addressing possible solutions such as promoting award repository and arbitrator education to uphold the integrity of arbitration.
Tu, Liwen, Why Binding Precedent Does Not Belong in Arbitration (April 7, 2024).
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