Post-Award Remedies - Chapter 14 - Practical Guide to International Arbitration
Originally from Practical Guide to International Arbitration
In-house counsel for the losing party to an international arbitration must assess quickly what, if any, options exist to seek recourse from an unfavorable award. This is an uphill battle in most cases, because parties that have agreed to pursue arbitration typically also agree to forgo any form of appeals in favor of ensuring the efficient and final resolution of their claims. The losing party may nonetheless try to pursue several different kinds of post-award remedies ranging from modifying clerical errors found in the award to setting aside the award in its entirety.
Counsel seeking post-award relief should look first to any relevant arbitration rules and to the law of the seat of the arbitration. The procedural rules of most major arbitral institutions give procedures for remedying defects in or seeking interpretations of an arbitral award. The domestic legal framework of the seat plays a critical role in determining what legal grounds may exist to set aside or annul the arbitral award, in whole or in part. The UNCITRAL Model Law provides guidance as well, as many countries have enacted legislation adopting the Model Law.
A. FORUM FOR POST-AWARD REMEDIES
Parties seeking post-award remedies have two options: either they can try to reconstitute the arbitral tribunal that issued the award, or they can initiate a challenge before a national court at the arbitral seat. Most arbitral institutions do not provide their own internal post-award review procedures.
The types of remedies available from the arbitral tribunal that issued the award are limited and often technical in nature. This constraint exists, in large part, because the mandate of an arbitral tribunal terminates after it renders a final award. This means the tribunal has become discharge or functus officio, and it has no further authority to act absent a separate arbitration or submssion agreement by the parties. As a practical matter, it may be difficult to reconstitute the tribunal if the individual members are no longer available to meet, deliberate, and issue further decisions. Recall that arbitrators are private citizens; following the conclusion of an arbitration, they may move on to other professional pursuits or otherwise become unavailable.