Chapter 49 - The Award - Handbook on International Commercial Arbitration - Second Edition
The Award is the culmination of a great deal of work both by the arbitrators and by the parties and their counsel.
Before the Award can be drafted, the arbitrators have to decide upon the issues in the reference which may vary considerably in number. If the terms of reference have been drafted with care and precision, or if a list of issues has been drawn up, the issues that fall for determination may simply be reflected by a process of working through those existing documents.
The Tribunal will make its decisions carefully and in light of the evidence both factual and expert, by applying the applicable law and in light of the submissions that have been made, all of which will have been canvassed either at a hearing or in memorials or briefs of some kind. Those decisions, together with the reasons for them, are set out in the Award, which may be declaratory—i.e., a statement by the tribunal that a certain state of affairs does or should exist—but is more commonly mandatory, that is to say a direction that one or the other party do certain things, usually pay money in respect of the substantive issues decided and usually also pay money in respect of the costs of the reference.
An international arbitration, even one concerning relatively modest issues, is a considerable intellectual and financial exercise. It is also likely to cost a considerable amount of money. The Award is not merely the final product; it is the instrument through which the objectives of the arbitration, the proper determination by the Tribunal of the issues as between the parties, are to be given effect. The importance of the Award is self-evident. Necessarily, it must be fit for purpose; it must be enforceable.
In general, that does not require an Award to be made in some particular form or style (although it does perhaps call for a good standard of presentation). As the court said in Bremer Handelsgesellschaft mbH v. Westzucker GmbH (No. 2); Westzucker GmbH v. Bunge GmbH: