Discussion - Part II - The Review of International Arbitral Awards

Ad hoc committee case law raises a number of issues. Before going into these issues, it has to be noted that the lack of consistency concerning the review standards applied by the ad hoc committees is slightly worrisome.

The first issue arises from the CMS decision and concerns the use of obiter dicta. Is it a good thing for ad hoc committees to use the obiter dictum technique, as the Committee extensively did in CMS? When, as was the case in CMS, an ad hoc committee believes that the award under review is flawed but that this does not call for annulment, should the committee nevertheless come down hard on all the errors it believes to be contained in the award? Shouldn’t the committee simply state, if it feels that it cannot annul the award, that the stance taken in the award is not the only possible position and refrain from criticizing the award too harshly? Will the opposite line of action, that taken by the CMS Committee, i.e., implying that a decision is wrong but that nothing can be done about it, not damage the institution’s credibility?