Post-Hearing Issues In International Arbitration - Chapter 1 - Deliberations of the Arbitral Tribunal – Analysis of Reasoned Awards from a Swedish Perspective
Finn Madsen is the author of Commercial Arbitration in Sweden, published by Oxford University Press (3rd edition), 2007 and in Mandarin by Law Press China 2008. Mr. Madsen has held a number of positions, including Service in Swedish District Courts and Court of Appeal (1980 – 1986) and the Head of Legal Department, Gota Bank, Southern Region (1992 – 1993), and Advokatfirman Vinge KB (1993 – 1995), of which he has been a partner since 1995. Mr. Madsen is also admitted to CIETAC’s list of arbitrators, a Fellow of the Chartered Institute of Arbitrators, a Swedish member of International Chamber of Commerce (ICC) network of lawyers (FraudNet) specialising in asset tracing and recovery and Chairman of the Arbitration Association of Southern Sweden 2008 to 2011. Mr. Madsen has acted as counsel in numerous domestic arbitrations, co-arbitrator for domestic arbitral tribunals in numerous cases, Chairperson in numerous domestic arbitrations, Sole Arbitrator appointed by the Arbitral Council of the Chamber of Commerce and Industry of Southern Sweden and by the Institute of the Stockholm Chamber of Commerce (SCC), and Chairperson appointed by the SCC. He has also acted as counsel and co-arbitrator in a number of cases under the ICC, the SCC, The Danish Institute of Arbitration and the UNCITRAL Rules, appointed Sole Arbitrator by the ICC International Court of Arbitration, Paris and appointed Sole Arbitrator and chairperson by the SCC. Mr. Madsen has extensive experience in commercial litigation (including, but not limited to, areas such as trade and finance, joint ventures and industrial cooperation, mergers and acquisitions, company law, agency and distribution, intellectual property rights, construction, finance and banking) in the courts of law in Sweden. A number of cases have been brought before the Supreme Court. Mr. Madsen is a member of the Swedish Bar Association since 1993 and member of the International Bar Association.
Peter Krikström is an Associate Judge of the Scania and Blekinge Court of Appeal, Sweden. He presently serves as inquiry secretary at the Swedish Ministry of Justice. Before taking his current position, he served as Judge Referee at the Swedish Supreme Court. Peter Krikström is also a former associate of Advokatfirman Vinge KB in Malmö, Sweden.
Originally from: Post-Hearing Issues in International Arbitration
I. INTRODUCTION
A. General Remarks
In 1989, in an article in the Journal of International Arbitration, Robert Coulson – at the time President of the American Arbitration Association – posed the question whether we know how arbitration panels decide. In the article,1 Coulson presented the results of a study conducted by the American Arbitration Association in which a number of randomly chosen arbitrators responded to questions relating to decision-making in domestic commercial arbitration practised in the United States. According to this study, informal consensus appeared to be the normal method used by arbitrators in reaching a decision and Coulson pointed out that the respondents stated that it was often not necessary to take a vote.
In reporting these findings, Coulson touched upon an issue on which we intend to elaborate on more closely in this paper. There appears to be a prevailing view among legal practitioners and academics that an arbitration panel in an international commercial arbitration should decide the award following deliberations among the arbitrators.2
Part I: The Arbitral Award
Chapter 1
Deliberations of the Arbitral Tribunal - Analysis of Reasoned Awards from a Swedish Perspective
Finn Madsen and Peter Krikström
I. Introduction
A. General Remarks
B. Scope and Aim
II. General Provisions Regarding Deliberations
A. Provisions of National Arbitration Laws
B. Rules of the Arbitration Institutes
C. Case Law and Legal Literature
1. General Remarks
2. Failure of an Arbitrator to Participate in the Deliberations
3. Exclusion of an Arbitrator from the Deliberations
III. A Systematic Approach
IV. Reasoned Awards
A. Provisions of National Arbitration Laws
B. Arbitration Institute Rules
C. Legal Literature
D. Position of National Courts
E. Lack of Reasons and Public Policy
1. General Remarks
2. International Public Policy
F. ICSID Annulment Proceedings
1. Klöckner v. Cameroon
2. Amco v. Indonesia and Guinea v. MINE
3. Wena v. Egypt
V. Absence of Reply to the Arguments of the Parties
A. Introductory Remarks
B. Case Law
VI. Dissenting Opinions
A. General Remarks
B. Selection of Material
C. Implications of Dissenting Opinions
VII. Conclusions
A. General
B. How does the requirement of reasoned awards and the necessity to respond to certain arguments affect the deliberations and decision-making?
C. The Case For Formulating Other Voting/Decision Issues than the claims per se