Originally from Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42

PIERO BERNARDINI:

Thank you Julian and thank you to ASA and Michael E. Schneider for inviting me to speak before this distinguished audience.

The first point I will have to deal with is identifying the issues to be decided. As we all know, the award is commonly defined as a decision by an arbitral tribunal which disposes in a final way, in all or in part, the issues submitted by the parties for decision. The first task in the deliberation process for the tribunal is to identify what issues are we supposed to decide to make an award.

Those issues are normally extracted, if I may say so, by the tribunal from the parties’ pleadings and especially the relief sought. This is not always so easy a task because the parties sometimes have not well defined their positions so it will be up to the tribunal to ask the parties to submit a kind of final conclusion in which the issues they wish to be decided by the tribunal are clearly spelt out.

Why are issues to be decided by an award so important: because the arbitrator, as the international judge, is bound by the petita partium. If an arbitral tribunal decides infra petita, as we know, the award may be subject to annulment by the competent court or, in case for example of application of the English Arbitration Act, may be subject to the reconsideration by the arbitral tribunal by order of the court.

The first distinction I believe to be made is between questions of procedure and substantive questions. Questions of procedure are normally decided by an order. Questions of substance, the issue which I have been talking until now, have to be decided by an award. There are different rules governing decision and deliberation, a question of procedure with respect to a question of substance: the first to be decided by an order, the latter by an award.

The tribunal may delegate the decision or questions of procedure to the chairman—as Bernhard Berger mentioned this before—or, as under the Italian Code of Civil Procedure, the acquisition of means of evidence may be delegated by the tribunal to one member of the tribunal.