Making of the Arbitral Award and Closure of the Arbitral Proceedings - Chapter 7 - Arbitration of International Disputes in New York

Dr. Peter (Pieter) Bekker is an international arbitration practitioner and professor. He has been a member of the Bar of the State of New York since 1992. He is also a member of the Bar of the Supreme Court of the United States. He is admitted to practice before the U.S. district courts for the Eastern and Southern Districts of New York and the U.S. Court of Appeals for the First Circuit. He is a commissioned New York Notary Public and, as such, a constitutional officer of the State of New York, where he resides.

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Originally from Arbitration of International Disputes in New York

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7.1. FORM, CONTENT, AND EFFECT OF THE ARBITRAL AWARD

In contrast to New York state law, the FAA does not include explicit requirements regarding the form and content of an arbitral award. The FAA and the New York Convention lack a definition of the term “arbitral award.” An arbitral award may be defined as a decision, or formal ruling, by which an arbitral tribunal determines the rights and obligations of the parties in the relationship, contractual or otherwise, that gave rise to the dispute and to the arbitration. Awards must be distinguished from procedural orders, which are interim decisions determining the rights and obligations of the parties under the procedure resulting from the parties’ arbitration agreement (e.g., orders fixing or extending time-limits for the filing of written pleadings or orders addressing discovery issues). Awards may take multiple forms, including partial, interim, interlocutory, and final awards. A final award is an award that finally and conclusively adjudicates all claims and issues submitted to the arbitral tribunal for decision-making and by which the mandate of the tribunal is completed. Awards that are not “final” in this sense are decisions that conclusively settle some, but not all, of the issues submitted to the arbitral tribunal for decision-making. Examples are awards that decide bifurcated issues such as jurisdiction, merits (liability), or quantum (damages) separately.

Depending on the applicable rules of the selected arbitration institution or independent rules used in connection with ad hoc arbitration, the parties to an arbitration may request the arbitral tribunal to incorporate (the fact or the contents of) a settlement of their dispute in a consent award, sometimes referred to as an award-on-agreed-terms, whereby the arbitral tribunal simply records the settlement reached by the parties in the form of its award, typically without giving reasons. This will leave the parties with an enforceable award. A party may wish to obtain a consent award for indemnification purposes or as a basis for obtaining monetary relief from the other party based on the settlement reached by the parties.