Professional Documents
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9. Award
A. Introduction
B. Categories of Award
Where there is a dispute between the parties as to the law(s) applicable to the
merits of the case, it may be sensible for the arbitral tribunal to issue a
preliminary decision on the question of the applicable law
Chapter 10
When the tribunal renders an award that does not address all of the issues
presented, the parties may, within a limited frame, request an additional
award to remedy this gap
C. Remedies
The type of award most often made by an international arbitral tribunal is one
that directs the payment of a sum of money by one party to the other
o This payment mar represent money due under a contract (debt), or
compensation (damages) for loss suffered, or both
The sum of money awarded is usually expressed in the currency of the
contract or the currency of the loss
Punitive damages are not awarded to compensate the wronged party, but
instead to punish and deter the wrongdoer
In general, punitive damages are an exceptional and extreme measure
permitted only, for example, in cases of fraud and substantial malice
(d) Restitution
Restitution seeks to put the aggrieved party in the same position as that in
which it would have been had the wrongful act not taken place
o In common law terminology, it is a form of specific performance
In the field of commercial arbitration, it is a remedy that is
hardly ever used in practice perhaps because international
tribunals rightly tend to avoid making awards that are difficult
to enforce
(e) Injunctions
(g) Rectification
(i) Interest
Most systems of national law expressly permit arbitral tribunals to award some
form of interest on an amount awarded in respect of a claim or counterclaim,
whether the principal amount awarded is due under a contract or as
compensation or as restitution
V. Post-award interest
(j) Costs
The costs of the tribunal usually include not only the fees, and travel-related
and other expenses, payable to the individual members of the arbitral tribunal
itself, but also any directly related expenses, such as the fees and expenses of
any experts appointed by the arbitral tribunal
The costs of arbitration include hiring rooms for hearings, and other meetings,
between the parties and the tribunal, as well as the fees and expenses of the
reporters who prepare the transcripts
III. Costs of the parties
The costs of the parties include not only the fees and expenses of the legal
representatives engaged to represent the parties at the arbitration hearing,
but also costs incurred in the preparation of the case
(a) Introduction
I. Concurring opinions
Dissenting opinions pose greater problems and are less frequently delivered
There is a broad division of philosophy and practice as to wheter the giving of
dissenting opinions should be permitted
VI. When and how should dissenting opinions be given in international arbitrations?
(a) Generally
The bests awards are short, reasoned, and simply written in clear,
unambiguous language
An arbitral tribunal should aim at rendering a correct, valid, and enforceable
award
I. Arbitration agreement
Awards will often begin by setting out the names addresses of the parties, and
the names and contact details of their representatives
The award will then usually contain a brief narrative setting out a number of
facts relating to the arbitration
IV. Signatures
Some national systems of law require that all arbitrators should sign the award
in order for it be valid
o This is highly unsatisfactory, since, in such cases, a dissenting arbitrator
may frustrate an arbitration simple by refusing to sign the award
I. Arbitration agreement
II. Unambiguous
IV. Reason
The way in which reasons are given in arbitral awards varies considerably
o Sometimes, the reasoning, or motivation, is set out with extreme
brevity
A limit may be imposed as to the time within which the arbitral tribunal must
make its award
It is rare to find time limits for delivery of the award in non-institutional rules
o Where such limits are imposed, it is usually by an express agreement
between the parties, contained in the arbitration clause or the
submission agreement
Undoubtedly, such a provision is inserted with the intention of putting
pressure on the arbitral tribunal to complete its work with due dispatch and in
order to minimize the opportunities for delaying the resolution of disputes by
the parties themselves
Perhaps the best way in which the parties can put time pressure on an arbitral
tribunal, without placing the effectiveness of the proceedings at risk, is to
insert some form of non-mandatory provision
F. Effect of Awards
The basic principle of res judicata is that a legal right or obligation, or any facts,
specifically put in issue and determined by a court or tribunal of competent
jurisdiction cannot later be put back into question as between the same
parties
Where there are subsequent disputes between the same parties, more
difficult questions arise
Many systems of national law with developed arbitral rules permit the
correction of minor clerical or typographical errors in awards, either at the
request of one or both of the parties, or by the arbitral tribunal on its own
initiative
After the award has been made, parties can also settle a dispute by voluntarily
agreeing to vary the terms of the award themselves
o In a study of the record of compliance with, and variation of, awards
once rendered, it was found that more than 18 per cent had been
renegotiated post-award to establish final settlement