Jurisprudência arbitral internacional: existência, relevância e requisitos de formação

Abstract

This work seeks to analyse the formation of jurisprudence by international arbitration courts and the requirements that must be met in order to encourage and improve its development. Firstly, we present an overview of arbitration as a private method for the enactment of jurisdiction and transnational dispute resolution. In the following chapter, we demonstrate the interactions between arbitral jurisprudence and a system of precedents, along with the concepts of normative sources and theories of a-national legal orders, such as propositions of an arbitral legal order and lex mercatoria. We also analyse the use of arbitral jurisprudence in characteristic arbitral scenarios, where specific disputes and juridical subjects are brought. We conclude that there does not exist a generic, formal obligation to reference previous arbitral decisions (or arbitral precedents) in arbitral awards, and, simultaneously, that there is a broad practice of using arbitral jurisprudence in the judgment of certain types of controversies. Finally, we point to three requirements that must be satisfied so that arbitral jurisprudence may exist, and recommend practices to help develop its formation.