The System Establishment Of Arbitral Precedent In International Law

Precedent originally derives from the case law of common law system,case law hereby means relying on the specific judicial decisions previously rendered by courts or judges.The “stare decisis doctrine” which derived from precedent is the most important principle in common law system.Meanwhile,stare decisis doctrine,as the core of case law,is the legal foundation of trial process in courts.Stare decisis doctrine plays the key role of enhancing justice and legitimacy of law by rendering the same decisions in the same circumstances,at the same time,this doctrine lays the foundation for judge-made law and the development of modern legal system.Arbitration is widely accepted by countries compared to the courts proceedings.However,there is a hot debate that whether the precedent system should be established and applied in the field of international arbitration.The focus of the debate is mainly about whether arbitrators can act as judges in the judge-made law system of case law,those legislations include commercial law,anti-unfair competition,labor,maritime,securities as well as contracts.There should be a well-established balance between the necessary stability and development of law.The concept of Arbitral Precedent discussed in this article shall mean the arbitral awards rendered during the proceedings of arbitration and the awards are substantially relevant with the participants in future arbitrations.At the same time,the awards represent the standpoint and opinions of the arbitration institutions or the arbitraltribunals when dealing with disputes and issues.Those kinds of awards can be referred by the parties in later arbitration cases.The arbitral precedent discussed hereunder is more about the values the arbitral tribunal adopted when deciding the cases,meanwhile,the arbitral precedent can reveal the laws and rules the tribunal adopted.Despite the increasing attention for precedent applicable in international arbitration,precedent yet to become the legal arbitration system like UNCITRAL Model Law which has been commonly and widely accepted and applied.The application of precedent in many different arbitration institutions is still in the preliminary stage.The application of arbitral precedent in international arbitration can help fill the gaps in applicable law,as well as it can be the tool for displacing state-supplied law.Arbitral precedents applied in arbitration institutions and systems such as the International Centre for Settlement of Investment Disputes,ICSID,CAS,Court of Arbitration for Sport,and labor employment arbitration in both United States and Canada indicates the great chance of forming a comprehensive precedent system in the field of arbitration.Though the principle of stare decisis and precedent is applied differently in different areas of international arbitration to some extent,there are still hurdles ahead to legally establish a formal precedent system in arbitration.However,in order to enhance the development of the international arbitration,we must recognize the existing flaws and drawbacks in arbitration system;at the same time,arbitration will keep playing the role of safeguarding justice and fairness in the field of international law as well as guaranteeing the stableness of social order and politics only if we keep pursing the evolution and innovation of arbitration system.