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The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But deference may be shown not only to past rulings but also to rulings yet to come. Although there has been no prior ruling on an issue, a decision-maker may ask itself whether it should approach the issue deferentially, i.e., in the sense of leaving it to be primarily decided at a later time and elsewhere. This may not be how we usually view the notion of deference, but it is in fact a species of deference. It is one we may call deference by anticipation, or simply ‘anticipatory deference’.


Dispute Resolution and Arbitration | International Law | Law


Reprinted from "Deference in International Commercial Arbitration: The Shared System of Control in International Commercial Arbitration," 2023, pp. 71-92, with permission of Kluwer Law International.