1. aRBITRATION AWARD

2. Award: Definition
An instrument recording the tribunal's decision provisionally or finally determining the claims of the parties.
“...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.” NYC Art I(2)

3. Award = Decision?
All awards are decisions but not all decisions are award
Decision: a result of any conclusion or resolution reached after consideration
Award: a decision affecting the rights between the parties and generally capable of being enforced

4. Characteristics of an Award
Concludes the disputes as to specific issues determined in the award
Terminates the tribunal's jurisdiction
Disposes of parties’ respective claims
May be confirmed by recognition and enforcement
May be challenged in the courts of the place of arbitration

5. Procedural order
Make arrangements for the proceedings and do not decide the dispute
Fix the hearing at a place different from the seat of the arbitration
Order or refuse to order the disclosure of documents
Set deadlines for the submission of documents
Set out issues on which the tribunal would like to hear arguments

6. Classification of an award
Function
Effects
Form or qualifications ?

7. Arbitral Award: Types
“In addition to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial awards.” UNCITRAL Rules Art 32(1)
“Award” includes, inter alia, an interim, partial or final award. ICC Rules Art2(iii)
See CIETAC Art57; Netherlands, CCP Art1049

8. Final Award
ML Art 32(1)
Ends the proceedings and settles the claim between parties
Produces res judicata effect between the parties
Settles certain severable parts of the dispute with a binding effect on the parties – partial final award?
Resolves all the issues in the arbitration

9. Partial Award
Deals with claims which the tribunal must determine at early stage and which may have substantial effect on the determination of other matter
Final and subject to the means of recourse every application makes applicable to final awards
EAA s47; LCIA Rules Art26(7); UNCITRAL Rules Art32(1); ICC Rules Art2(iii)

10. Interim Award Is interim award the same with partial award?
UNICTRAL Rules Art26(2); AAA ICDR Art 21(2)
Can interim award be enforced under New York Convention?
See Art2(1)(c) Indian Arbitration Act compared with Australia and Austria position

11. Consent Award
Incorporates a settlement that the parties have reached during the arbitration ML Art 30; LCIA Art 26(8)
Must be recorded where requested by the parties ICC Rules Art 26
Enforceable under NYC – ML Arts 30&31

12. Default Award
It is made where one party fails to make an appearance before the arbitral tribunal
Will be made where a party given opportunity fails to present its case or reply to the arguments of the other fails to do so
Default award v Summary Judgement

13. Additional Award
Allows the tribunal to address issues it failed to determine during the arbitration proceedings
Must be rendered within a certain time limit
UNCITRAL Rules Art37; LCIA Art27(3); ML Art33

14. CONTENT AND FORM OF AWARD

15. CONTENT AND FORM OF AWARD
Legal style of the draftsman
Composition of the tribunal
Applicable laws & rules
Arbitration rules or applicable law dictate a certain minimum content and impose certain form

16. CONTENT AND FORM OF AWARD
Be in writing and signed
States the reason upon which it is based
States the date and the place of arbitration
Is delivered to each party
ML Art31; UNCITRAL Rules Art32(3)&(4)
“An award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was made. Where there are three arbitrators and one of them fails to sign, the award shall state the reason for the absence of the signature.”

17. Content of a typical award
The procedural background detailing the substantive submissions of the parties and evidence on which they have relied
The basis of jurisdiction of the tribunal
Factual background to the arbitration including the essential terms of the agreement
Nature of the dispute and respective position of the parties
The principal content of the award should record the claims and defences of the parties, the tribunal’s conclusions and on these issues and the main reasons for the determination reached

18. Content of a typical award
Issues for the determination by the tribunal
Relief sought by the parties
Tribunal’s analysis and conclusions on each issue listed
Award of the tribunal with declaration and order decisions on damages interest and costs

19. Writing and Signature
ML31(1); EAAs52(3); LCIA Art26(1)&(4); UNCITRAL Rules Art32(2) – W & S
NYC Art IV – implies writing
CIETAC Art 56 – no reference to writing
AAA ICDR Art 27 – no reference to signature

20. Writing and Signature
If one party appointed arbitrator refuses to sign the award the remaining signature of the remaining arbitrators is sufficient provided that the reason for the missing signature is stated - ML Art31(1); UNCITRAL Rules Art 32(2); LCIA Art 26(4)
Signature of the presiding arbitrator only - ICC Art 25(1); WIPO Art26(4)
Signature of all arbitrators who voted for the award – EAA s52(3); Swiss PIL Art 189(2);

21. Place and Date
Place of arbitration should be stated unless otherwise agreed
Award shall be deemed to have been made at the stated place of the arbitration – ICC Art 25; LCIA Art 26(1); ML Art31(3)
Place of signing award is not the same with the place where the award is made
Award does not need to be signed at the place of arbitration. The place of signature should not be deemed the place where the award was made – ML Art31(3); WIPO Art62(b)
Place may be relevant for the nationality of the award which affects the jurisdiction of the for challenge proceedings and the relevant enforcement regimes

22. Importance of Date
For the running of statutory time limits for the challenge of the award ML Art34(3); EAA s70(3)
For determing when the award begins having res judicata effect

23. Reasons Reasons are required – ICC Art25(2); ML Art31(2)
Reasons are required unless otherwise agreed by the parties or it is an award on agreed – WIPO Art 62(c); EAA s52(4); LCIA Art26(1)
Reasons are required unless the award is on the condition or quality of goods
Should an award be challenged only for complete lack of reasoning or for insufficient reasoning?

24. Reliefs Ordered Specific Performance Damages/Monetary Compensation
Declaratory Relief – EAA s48(3)
Gap filling and contract – ML Art7(2)
Punitive damages and exemplary damages
Restitution
Rectification
Injunctive Relief – ICC Rules Art 23; UNCITRAL Rules Art 26

25. Decisions on Cost
The tribunal has the power to allocate cost except there is a contrary agreement by the parties - ICC Art31(3); LCIA Art28; UNCITRAL Rules Art 40
CIETAC Art 59 – Limits the power of the tribunal to apportion cost
Losing party to pay all or substantial cost EAA s61
Allocation of cost between the parties taking into account their attitude during proceedings

26. Arbitration Cost Arbitrators’ fees Hiring of venues Translator's fees
Fees and expenses of any experts appointed by the tribunal
Administrative expenses of the arbitration institution

27. Legal Cost
Include the cost for legal representation in the arbitration proceedings
Expenses of the legal teams for preparing the case and advising the parties

28. Correction of Errors and Interpretation of Award
“Correction of errors in computation, any clerical or typographical errors or any errors of similar nature” ML Art33; LCIA Art27, UNCITRAL Rules Art 36
Content must not be altered
Amount awarded cannot be changed by the tribunal if it misinterpreted an underlying expert opinion or other facts
Note – ICC scrutiny ICC Rules Art 27

29. Interpretation
Will be allowed when the ruling rather the discussion of facts arguments is expressed in vague terms
Ambiguity as to how the award should be executed
Should relate to specific point or part of the award
Parties must agree to interpretation and notice must be given
UNCITRAL Rules Art 35; ICC Art 29