Does the Lack of Binding Precedent in International Arbitration Affect Transparency in Arbitral Proceedings?

Authors

Emily F. Ariz, University of Miami School of Law

Abstract

This note explores how the lack of binding precedent in both international commercial and investment arbitration affects transparency in arbitral proceedings. As arbitration increases in popularity, its deficiencies have become more apparent. The lack of binding precedent in arbitration is convenient in some ways, but problematic as it leaves arbitrators an immense amount of discretion when deciding cases. With many decisions unpublished to maintain confidentiality and those decisions that are published sometimes lack reasoning to support the award, transparency in arbitral proceedings is practically nonexistent. In recent years, there is a trend toward more transparency in certain types of arbitral disputes. In this Note, I argue that while the lack of binding precedent in international arbitration encourages arbitrators to decide cases too freely, which contributes to the lack of transparency in arbitration, there are also many other factors that contribute to this problematic feature of international arbitration.

Recommended Citation

Emily F. Ariz, Does the Lack of Binding Precedent in International Arbitration Affect Transparency in Arbitral Proceedings?, 29 U. MIA Int’l & Comp. L. Rev. 356 (2021)
Available at: https://repository.law.miami.edu/umiclr/vol29/iss1/10