Drafting the Award - Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42
Originally from Inside the Black Box: How Arbitral Tribunals Operate and Reach Their Decisions - ASA Special Series No. 42
We have heard from Piero Bernardini and David W. Rivkin the form of deliberations, the organisation of the deliberations so my task is to go beyond the deliberations to the stage where the arbitrators have reached a decision, or think they have reached a decision, but the award is not yet drafted. I will not deal with arbitrators who have second thoughts at that stage, although I should mention a most remarkable experience I had when after the very first deliberation one of the arbitrators sent straight away his dissenting opinion to the ICC, and at that stage the award had not been written. At least he made himself clear.
It is very important that at the deliberations decisions are actually reached. We all know the situation, especially over a good lunch or dinner, no-one is very contentious and maybe there are things left open but once you start drafting the award you realise that although you thought you came out of the deliberation with a decision it is something completely else to fine tune it and to put in a written form. The chairman should always make sure, and also the co-arbitrators, that decisions are actually taken at the deliberation.
Who should draft the award? In my view this is the task and the prerogative of the chairman although there may be exceptions, for instance if the applicable law is not one in which the chairperson is qualified. In that event he may ask one of the co-arbitrators who is qualified in that law to prepare notes or to provide further drafts of relevant sections. It is usually not advisable to have collective drafting especially if the linguistic skills of the arbitrators are not identical because then you see from the award who has written it and also who has not written the relevant sections, which may give the wrong impression to the reader.
Suggestions from the chair that a co-arbitrator should write certain sections are usually met with more enthusiasm if the arbitrators are paid by the hour rather than the normal ICC way of allotting fees which is more 40/30/30.