Writing the Award—An Arbitrator's Perspective - Chapter 15 - International Arbitration Checklists - 3rd Edition
Originally from International Arbitration Checklists - 3rd Edition
While every chapter in this handbook could have a coda reflecting an arbitrator’s perspective, the award is a subject in which the arbitrator has an understandably special interest. Experienced international arbitrators are accustomed to, and prepared to operate in, a wide range of procedural frameworks. They may prefer some to others and, to the extent that the arbitral agreements and the rules and procedures thereby incorporated allow, may exercise discretion to favor some procedural approaches over others.
In the end, however, it is the award that is the product of the arbitrator’s endeavors. An arbitrator will seek not only to conduct an arbitration in a manner that is proper in all respects, but also to produce an award that manifests the quality of that performance at the same time as it, obviously, reflects a proper consideration of the merits of the dispute. Perfect enforceability is a minimum standard.
The previous chapter, dealing with the award, highlights some of the most pressing aspects of the drafting of arbitral awards from counsel’s point of view. Shall the award be reasoned or not? Shall it contain dissents and possibly concurrences? Shall it award interest and allocate costs?
These are, of course, among the questions arbitrators will ask themselves about the award, but they are not the only questions. Precisely because the award is the culmination and reflection of the entire proceeding, the arbitrator may consider an even broader range of considerations relating to the award.
The checklist accompanying this chapter is thus, in effect, a checklist for the arbitrator and, therefore, indirectly also for counsel.
Partial and Unitary Awards
Arbitrators increasingly issue awards that do not dispose of the entirety of the case. This is not to say that such awards are necessarily interlocutory (in the sense of affording merely interim or provisional relief) or otherwise non-final. They may be “dispositive,” but at the same time not resolve all of the claims or issues in the case.
While such dispositive awards are commonly described as “interim,” that term can be misleading because they are in fact not merely provisional. The term “partial award” would be more accurate.
Most leading arbitral rules permit the issuance of partial awards. But the tribunal and counsel need to ensure that the law of the place of arbitration does not require that an award dispose of the entirety of the case or require express consent by the parties for the issuance of partial awards.