The Award - Chapter I.7 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

Jonathan Sutcliffe is a Partner in the Dubai office of Fulbright & Jaworski L.L.P. He has significant experience in international arbitration and dispute resolution and has acted for numerous clients on a diverse range of international commercial arbitration, ADR and litigation matters in the energy, construction, defense, insurance, international joint venture and film sectors and on investor-state disputes. Jonathan also sits as an arbitrator. Jonathan is qualified in England and Wales and in New York and is registered as an advocate in the DIFC Courts. He is recommended for international arbitration and projects and energy disputes by various leading legal guides, including Chambers UK, which described Jonathan as "extremely articulate, well prepared and capable of handling complex issues" (2010) and as "a well-rounded strategic and technical practitioner," (2009) and Chambers Europe 2008, which described Jonathan as "an extremely able practitioner who is highly rated by everyone he works with." Jonathan is also noted for his international arbitration work by Legal 500 UK and Legal 500 Europe, Middle East and Africa.

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Originally from Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

This chapter addresses the formal requirements and components of an enforceable international arbitral award, including the requirements that it be in writing and signed, its reasons stated, permissible remedies be specified, special legislative requirements be satisfied, and time limits respected. The chapter also provides guidance in drafting an award, specifying the preferred content, including a brief summary of the proceedings, a specification of the issues, a recitation of the facts and controlling legal principles, an assessment of the damages and costs, and the disposition. The chapter concludes with a discussion of the deliberation process, dissenting opinions, the assessment of costs, the right to seek a correction or interpretation of the award or an additional award, the problems arising when an arbitrator refuses to participate, and issues involving notification and deposit of the award.

§ 7.01 In General

[1] What is an Award?

Practitioner's Hint: Practitioners should bear in mind that the meaning of "award" varies with the circumstances.

Absent a settlement, an arbitration will end with the issuance of an award by the arbitral panel. The award can therefore be said to be the culmination of the arbitral process.1 But what is an award? For such an important element of the arbitral process, some are surprised to learn that few in the international arena agree on the definition of "award." The New York Convention provides that, "The term ‘arbitral awards' shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted."2

One reason for the lack of an internationally accepted definition of "award" is the difficulty of settling on a definition that can satisfactorily encompass the different types of award that an arbitral panel may issue.

Before discussing the different types of award (e.g., interim, partial, final and consent awards), we must first consider the types of decision that an arbitral panel may have to make in the course of the arbitral process.3

Table of Contents:

§ 7.01 In General
[1] What is an Award?
[2] Difference between a Procedural Order and an Award
[3] Different Types of Awards
[a] Terminology
[b] Final Awards
[c] Partial and Interim Awards
[d] Default Awards
[e] Consent Awards

§ 7.02 Formal Requirements and Components of an Award
[1] Writing
[2] Reasons
[3] Number of Arbitrators Required to Agree
[4] Signature
[5] Determining the Scope of the Award
[6] Permissible Remedies
[a] Damages or Monetary Compensation
[b] Punitive Damages
[c] Correction of a Contract
[d] Gap Filling and Adaptation of Contracts
[e] Restitution
[f] Specific Performance
[g] Injunctions
[h] Anti-suit Injunctions
[i] Declaratory Relief
[j] Interest and Costs
[7] Interest
[a] Contractual Interest
[b] Interest Payable By Way of Damages
[8] Special Legislative Requirements
[9] Time Limits

§ 7.03 Drafting the Award
[1] The Target Audience
[2] Legal Requirements as to Content
[3] Summary of Proceedings
[4] The Issues
[5] The Facts and Pleas
[a] Recitation of Facts
[b] Application of the Law to the Facts
[6] Assessment of Damages or Quantum
[7] Costs
[8] The "Dispositif"
[9] The Award Draftsperson

§ 7.04 Deliberations of the Arbitrators
[1] Confidentiality of Deliberations
[2] The Problem of the Non-Participating Arbitrator

§ 7.05 Dissenting Opinions
[1] Issuance of the Dissenting Opinion
[2] ICC Court Scrutiny of Dissenting Opinions
[3] Challenge Based on Dissenting Opinions

§ 7.06 Awards of Costs
[1] Costs of the Arbitration
[2] Costs of the Parties
[3] Assessment of Costs

§ 7.07 Corrections, Interpretations, and Additional Awards
[1] Lex Arbitri
[2] Arbitration Rules

§ 7.08 Notification and Deposit of the Award
[1] Notification of the Award
[2] Deposit of Award

§ 7.09 Special Requirements
[1] ICSID Review Procedure
[2] Scrutiny of the Award