Originally from Soft Law in International Arbitration, Second Edition

PREVIEW PAGE

Introduction

Of the procedural tasks involved in the conduct of an arbitration, the proper drafting of awards is of particular importance.  The award is the participants’ goal in the arbitral process (i.e., before enforcement), the tribunal’s final substantive task, and the enforcing court’s primary focus, along with the arbitral agreement.  Indeed, many courts will generally refrain from reviewing the evidence and other submissions underlying the award, as these are within the arbitrator’s often unreviewable power to assess the factual dispute.  If an issue is properly before a tribunal, the resulting arbitral award will live or die on its own terms.  Finally, once an award is issued, a tribunal is generally functus officio and cannot revisit the award beyond addressing certain clerical issues.   Although there is some contrary national law, participants in an arbitration should view the award as the final stage in the arbitration process.     

All too often, however, the award is not the final stage in the dispute between the parties.  Contentious issues in awards may result in costly litigation and, occasionally, in court-ordered remission, modification or vacatur.  No matter the result, litigation degrades the bargain the parties struck when they agreed to arbitrate their disputes, rather than resort to the courts. 

These issues underscore the importance of careful award drafting. “The writing of a reasoned and enforceable award is, without question, the key responsibility of an arbitrator. Yet, there are strikingly few practical guides available to assist arbitrators in performing this key responsibility.”  The diversity of cultural and legal backgrounds from which arbitrators come also results in a wide variety in the form, style, and language of awards.  That diversity also includes industry expertise, which other audiences to an arbitral award may lack, particularly where arbitrations are brought under specialized institutions, such as the Society of Maritime Arbitrators. That diversity is a central strength of international arbitration and why many parties choose it, but it also has consequences for the interpretation and enforcement of awards (and orders and interim and provisional awards and awards on consent and so on), particularly in distant courts.

This section examines four sets of guidelines that are intended to prevent these kinds of issues from arising.  They aim to make awards more comprehensive, clearer and likelier to withstand court review (and thus to prevent such litigations in the first place). Two of the guidelines discussed here are published by the International Institute for the Prevention and Resolution of Conflicts (known as CPR), one by the International Chamber of Commerce (ICC), and a set of three by the Chartered Institute of Arbitrators (CIArb).  They are:

•            CPR’s Guidelines for Arbitrators Conducting Complex Arbitrations

•            ICC’s Award Checklist

•            CPR’s Protocol on Determination of Damages in Arbitration  

•            CIArb’s Drafting Arbitral Awards (Part I: General; Part II: Interest; Part III: Costs)