This chapter assesses legal certainty in international arbitration. It specifically considers the noticeable shift in the balance between legal certainty and legal flexibility. While legal flexibility surely continues to deserve a place among the core values of international arbitration, it is legal certainty’s stock that has been on the rise in recent years. The shift can be felt throughout the international arbitration system, and it is mainly driven by an increased awareness that too much flexibility can ultimately imperil arbitration’s legitimacy. While, in the commercial setting, the shift toward greater certainty is occurring in response to concerns emanating from users of arbitral services, in the investment context, it rather reflects concerns about the power of arbitrators to shape public international law.
Transforming (Private) Rights through (Public) International Law: Readings on a ‘Strange and Painful Odyssey’ in the PCIJ Mavrommatis Case
