Notification and Deposit, Publication, Confidentiality and Preservation of the File - Chapter 4 - Post Award Issues: ASA Special Series No. 38
Bernhard BERGER is a Partner in the international arbitration practice of Kellerhals Attorneys at Law, in Berne, Switzerland. He has served as arbitrator, counsel and expert in numerous ICC, Swiss Rules, LCIA, UNCITRAL, CAS, and ad hoc disputes. Mr. Berger holds an LL.M. degree from Harvard Law School and a Ph.D. (doctor iuris) from the University of Berne Faculty of Law. He serves as a Member of the Board of the Swiss Arbitration Association (ASA) and of the Arbitration Committee of the Swiss Chambers’ Court of Arbitration and Mediation. Mr. Berger is the author of numerous treatises and articles in the fields of international arbitration, civil procedure and contract law, including International and Domestic Arbitration in Switzerland (2nd edn., 2010, published by Sweet & Maxwell).
Originally from Post Award Issues: ASA Special Series No. 38
The "post award" topics of notification and deposit, publication, confidentiality, and preservation of the file all address issues that are open to party autonomy, unless the applicable arbitration law at the arbitral seat provides otherwise. In other words, the parties and the arbitral tribunal may in principle, by agreement, establish rules to govern those topics.
An agreement of this kind can take two different forms: (i) it may result from the selection of the arbitral seat and its lex arbitri or a reference to a set of rules of arbitration, both of which may contain regulations to which the parties are deemed to have agreed by implied consent (agreement by reference); (ii) it may be contained in a specific "tailor-made" agreement concluded between the parties (and, to the extent necessary, the arbitral tribunal) at the beginning or in the course of the arbitral proceedings.
Accordingly, the purpose of this chapter is twofold. On the one hand, we will analyze, to the extent possible, the different solutions offered to those topics in selected arbitration statutes and arbitration rules. On the other hand, we will try to establish as to how the arbitral tribunal may want to address those issues in case there is no preexisting rule and no subsequent agreement can be reached.