The Award - Chapter 14 - International Arbitration Checklists - 3rd Edition
Originally from International Arbitration Checklists - 3rd Edition
Once the arbitration process is complete, it is up to the arbitrator or arbitration tribunal to produce an award. What will need to be considered in the award process is whether the award needs to be backed by reasons, the importance of any dissenting opinion of an arbitration tribunal member and any award of costs and interest that may be made. It is these more detailed aspects of the award that this chapter considers.
This chapter will deal primarily with the case of ICC and SIAC arbitrations but the issues considered apply to most other arbitration species.
Reasoned and Unreasoned Awards
An award is the document that sets out the arbitral tribunal’s decision on the matter in dispute. The award may include the reasons for its conclusions. The reasons form part of the award itself. Although a reasoned award is the norm, the parties may decide that they do not wish to have a reasoned award.
Most arbitral rules provide that the tribunal is to state its reasons in the award, unless the parties agree otherwise. This is the approach taken by the LCIA Rules, the UNCITRAL Rules and the ICDR Rules. The ICC Rules state that an award “shall state the reasons upon which it is based.” In ICC arbitrations, a draft award is vetted by the ICC Court of Arbitration before it is finalized and issued by the parties. The SIAC Rules require an award to state the reasons on which it is based in expedited proceedings, but does not otherwise expressly provide that an award must state reasons. However, given that a draft of the award is to be vetted by the Registrar, SIAC awards usually include reasons.
When considering whether or not the award should be reasoned or unreasoned, the parties must consider whether:
(a) the arbitration agreement expressly provides that reasons must be given. Failure to comply with such a requirement may impact on the validity and enforceability of the award;
(b) the procedural law that governs the arbitration requires the award to state reasons unless the parties have agreed otherwise (such as article 31(2) of the UNCITRAL Model Law and section 52(4) of the Arbitration Act 1996 (England & Wales));