Rendering Arbitral Awards with Reasons: The Elaboration of Common Law of International Transactions01 Jan 1985
With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a normative procedural policy of transnational proportions.
The critical question regarding the future development of international arbitral adjudication, then, is whether it can produce substantive legal principles and, in effect, stimulate and foster the development of a common law of international transactions.
This article argues that "reasoned awards," or awards accompanied by written opinions based on law, are an appropriate and useful instrument for fulfilling the normative potential of transnational arbitration and satisfying the "aspiration toward a new type of law." Reasoned awards could serve as a means of assessing the arbitrators' ability to assure the parties of a principled decisional basis. Furthermore, reasoned awards could act as nonbinding persuasive authority, gradually defining the basic substantive tenets of an international law merchant. The publication of such awards and their subsequent enforcement by national courts might lead to the creation of a general arbitral principle of stare decisis possessing a transnational stature.