Arbitral Award Scrutiny under Scrutiny: An Assessment - Chapter 6 - Arbitral Institutions Under Scrutiny: ASA Special Series No. 40
Simon GREENBERG is a Counsel with Clifford Chance's international arbitration group in Paris. His arbitration experience covers all major arbitral institutions, notably the ICC, and a range of dispute types. He is currently a Court Member of the ICC International Court of Arbitration, representing Australia. Before joining Clifford Chance in early 2012, he spent four years as Deputy Secretary General of the ICC Court, and previously practiced with leading international arbitration firms in Paris and Australia. He has authored or co-authored numerous articles and two books on international arbitration. His first book ("International Commercial Arbitration: An Asia-Pacific Perspective", Cambridge 2011) is the only subject-by-subject international arbitration text book with an Asia-Pacific focus. His most recent book ("The Secretariat's Guide to ICC Arbitration", ICC 2012) includes an article-by-article commentary on the 2012 ICC Rules of Arbitration. Simon also lectures on international commercial contracts at Sciences Po in Paris and on international arbitration at Hong Kong University.
Award scrutiny goes to the core of the question of the extent to which an administering institution can—or should—interfere with arbitral proceedings. The very thought of scrutiny conjures up images of institutional staff interfering with the arbitral tribunal's liberty of decision.
This article focuses on the ICC International Court of Arbitration's (“Court”) award scrutiny process and how it works in practice but also comments on the award scrutiny processes of other institutions. It then addresses perceived and actual benefits, risks, advantages, and disadvantages of award scrutiny before drawing conclusions based primarily on the author's ICC experience.2
2. FRAMEWORK AND HISTORY OF THE ICC RULES CONCERNING AWARD SCRUTINY
Award scrutiny is addressed in Article 33 of the 2012 ICC Rules of Arbitration (“ICC Rules”). This is a well-known provision because the text is identical to Article 27 of the 1998 ICC Rules of Arbitration. The provision states:
“Before signing any Award, the Arbitral Tribunal shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the Award and, without affecting the Arbitral Tribunal’s liberty of decision, may also draw its attention to points of substance. No Award shal be rendered by the Arbitral Tribunal until it has been approved by the Court as to its form."