International arbitration is not subject to appeal mechanisms or a doctrine of precedent as courts are. In spite of this, consistent decisions in international arbitration are common.The right to request compound interest for the damage caused by the breach of an investment treaty illustrates this well. Although this rule did not exist in international investment law in the 1990’s, since the Santa Elena v. Costa Rica case most investment arbitral tribunals have awarded compound interest in expropriation cases. This is just one of a plethora of consistent decisions that guide, constrain and define international arbitration. These consistencies arise from several factors, among which deference to past arbitral decisions. This article thus analyses the conditions that allow international arbitration to pay deference to past arbitral decisions and the rationale behind the decision of arbitrators to consider and follow past arbitral decisions.
Revue de l’arbitrage