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CHAPTER 7 – ROLE OF NATIONAL COURTS DURING THE PROCEEDINGS

2.

the establishment of the tribunal; and

Arbitration is dependent on the underlying support of the courts, which alone have the power to rescue the system when one party seeks to sabotage it.

- If the parties have failed to make adequate provision intervention of a national court may be required; national court must also intervene to decide any

Most states restrict the possibility of arbitration to disputes that the state itself regards as being legally capable of being

- challenge to the independence or impartiality of an arbitrator

settled by arbitration.

2.

challenges to jurisdiction

The state prescribes the boundaries of arbitration and enforces these boundaries through its courts. The state also determines other limitations upon the arbitral process: whether, for instance, arbitrators have the power to compel the attendance of witnesses or the disclosure of documents, and, more importantly, whether or not any appeal to the national court is possible, and if so, how, when, and upon what terms. the arbitral process remains subject to the arbitration law of the country in which it has its juridical seat and that of the country, or countries, in which a winning party may seek to recognize or enforce the eventual award.

At the Beginning of the Arbitration

Three situations in which the intervention of the court may be necessary at the beginning of the arbitral process:

1. the enforcement of the arbitration agreement;

- whilst any challenge to the jurisdiction of an arbitral tribunal may be dealt with initially by the tribunal itself, the final decision on jurisdiction rests with the relevant national court

During the Arbitral Proceedings

1. Interim Measures – Powers of the Tribunal

- five situations in which the tribunal’s powers may be insufficient:

a. No Powers

b. Inability to act prior to the formation of the tribunal

c. An order can affect only the parties to the arbitration

d. Enforcement difficulties (i.e. 3rd parties)

e. No Ex Parte Application

2. Interim Measures – Powers of the competent court

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- Article 9 of the Model Law also states categorically that: ‘It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure

- As to the question of whether to seek interim relief from the relevant court or the arbitral tribunal, much depends on the relevant law and the nature of the relief sought. Where an application is made to a national court for interim measures, a judge may be reluctant to make a decision that risks prejudicing the outcome of the arbitration.

§ Measures relating to the attendance of witnesses – to compel attendance.

§ Measures related to the preservation of evidence - example, section 44 of the English Arbitration Act 1996 grants to the courts in cases of urgency the same powers in arbitration to order the preservation of evidence, or the inspection, photographing, or preservation of property, as in court proceedings.

§ Measures related to documentary disclosure - arbitral tribunal’s power to order disclosure of documents is generally limited to the parties to the arbitration.

§ Measures aimed at preserving the status quo - if the application for interim measures is made to a national court, rather than to the arbitral tribunal itself, the court will have to consider whether it has the power to act, and if so, whether, in the particular circumstances, it should act.

§ Interim relief in respect of parallel proceedings - fact pattern is often similar: a dispute arises between a foreign party and a state, or state- owned entity, which has signed an arbitration agreement. The state entity wishes to sabotage the arbitral proceedings and have the case remitted for judicial determination in its own courts. It therefore seeks an injunction before those courts, seeking to challenge the jurisdiction of the tribunal, and an order requiring the arbitrators and adverse party to suspend or abandon the arbitral proceedings on pain of daily fines (or worse).

At the End of the Arbitration

The extent to which, if at all, national courts should exercise judicial control over the conduct of international arbitrations and the resulting award.

CHAPTER 8 - ARBITRATION UNDER INVESTMENT TREATIES (not included in Exam)

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CHAPTER 9 – AWARD

Parties to transborder transactions who go to the trouble and expense of taking their disputes to international arbitration do so in the expectation that, unless a settlement is reached along the way, the process will lead to an award.

Article 34(2) of the UNCITRAL Rules: ‘All awards shall be made in writing and shall be final and binding on the parties. The parties shall carry out all awards without delay.’

All ‘awards’ are ‘final’ in the sense that they dispose ‘finally’ of the issues decided in them (subject to any challenge or procedure for correction or interpretation), and they are ‘binding’ on the parties. The award that disposes ‘finally’ of all outstanding issues is known as the ‘final award’. A final award, in this sense, is usually the outcome of arbitral proceedings that have been contested throughout. However, it may embody an agreed settlement between the parties, in which case it is generally known as a ‘consent award’, or an ‘award on agreed terms’. Another category is an award in proceedings in which a party has failed or refused to participate, in which case it is usually described as a ‘default award’.

a. Definition of an Award

Article I(2) NYC: ‘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.’

Award’ means a final award which disposes of all issues submitted to the arbitral tribunal and any other decision of the arbitral tribunal which finally determines any question of substance or the question of its competence or any other question of procedure but, in the latter case, only if the arbitral tribuna l terms its decision an award.

The time limit for challenge of an award begins to run from the date on which the award was issued. Once the final award has been made, it may be impossible for a party to challenge any element in it that flows from a previously unchallenged partial award. Moreover, only an ‘award’ will qualify for recognition and enforcement under the relevant international conventions, including the New York Convention.

b. Award vs. Order

Case: Brasoil

The Cour de Cassation held that ‘only proper arbitral awards may be challenged through an action to set aside’ and went on to define awards as: “ … decisions made by the arbitrators which resolve in a definitive manner all or part of the dispute that is submitted to them on the merits, jurisdiction or a procedural matter which leads them to put an end to the proceedings”

c. Rendering an internationally enforceable award

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Article 41 of the ICC Rules provides: ‘In all matters not expressly provided for in the Rules, the Court and the arbitral tribunal shall act in the spirit of these Rules and shall make every effort to make sure that the award is enforceable at law.

For an arbitral tribunal to achieve the standard of performance required to make an internationally enforceable award, it must first ensure that it has jurisdiction to decide all of the issues before it. The arbitral tribunal must also comply with any procedural rules governing the arbitration. The arbitral tribunal must also sign and date the award, and arrange for it to be delivered to the parties in the manner laid down in the relevant law or by the rules that apply to the arbitration.

Article V(2)(b) NYC: Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country wher e recognition and enforcement is sought finds that … the recognition or enforcement of the award would be contrary to the public policy of that country.

Categories of Award

a. Partial Awards

- effective way of determining matters that are susceptible to determination during the course of the proceedings, and which, once determined, may save considerable time and money for all involved.

- Power to issue may derive from the arbitration agreement, the applicable rules or the applicable law.

-

Ex amples of where a partial award is likely to prove useful:

i. Issues concerning the applicable law

ii. Separation of issues (jurisdiction, liability, quantum)

iii. Limitation clauses in a contract

b.

-

c.

-

Foreign and Domestic Awards

In India, the Foreign Awards (Recognition & Enforcement) Act 1961 defines a foreign award as an award made in another country on differences between persons arising out of legal relationships, whether contractual or not, considered to be commercial under the law in force in India. Conversely, th e Indian Supreme Court has held that the term ‘domestic award’ means an award made in India whether or not this is in a purely domestic context; thus, the definition will include a ‘domestically rendered’ award in a domestic arbitration or in an internatio nal arbitration.

Default Awards

When international arbitrations are commenced in which one party (usually the respondent) fails or refuses to take part. The task of an arbitral tribunal is not to ‘rubber stamp’ claims that are presented to it; rather, it must make a determination of these claims, so the tribunal must take upon itself the burden of testing the assertions made by the active party, and it must call for such evidence and legal argument as it

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may require for this purpose. If the arbitral tribunal makes an award in favour of the active party in the proceedings, it will wish to ensure that the award is effective.

-

it should ensure, in particular, that the award recites

in

considerable detail the procedure followed by the

arbitral tribun al and the efforts made by the arbitral tribunal to communicate the active party’s case to the defaulting party, so as to give that party every opportunity to present its own arguments and evidence.

d.

Additional Awards

-

When the tribunal renders an award th at does not address all of the issues presented, the parties may, within a limited time frame, request an additional award to remedy this gap.

e.

Consent Awards and terminations of proceedings without an award

-

parties to an international arbitration often arrive at

settlement during the proceedings. Where this occurs, the parties may simply implement the

a

settlement agreement and thus revoke the mandate

of

the arbitral tribunal. In many cases, the parties find

it desirable for the terms of settlement to be embodied in an award.

-

it is usually easier for a party to enforce performance by the other party of a future obligation if that

obligation is contained in an award (in respect of which the assistance of the New York Convention may be available), rather than to take further steps to enforce a settlement agreement.

Article 30 of the Model Law provides for such an agreed award .

Remedies

The arbitral tribunal’s power to grant appropriate relief is based on the arbitration agreement and the applicable arbitration law.

Arbitration awards may cover a range of remedies, including:

a. monetary compensation

directs the payment of a sum of money by one party to the other. This payment may 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.

Under many national arbitration laws, arbitral tribunals have discretion to make awards in any currency deemed appropriate. à Lesotho Highlands case

b. punitive damages and other penalties

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Punitive damages, it is necessary to look at the law applicable to the substance of the dispute, as well as the law of the seat of the arbitration.

The question of whether an arbitral tribunal has the power to impose penal sanctions depends on the law of the place of arbitration (the lex arbitri) and the provisions of the arbitration agreement.

it is preferable for arbitral tribunals to treat any award in respect of punitive damages or any other penalties as an entirely separate claim, in order to ensure that the punitive portion of the award is severable in the event of a successful challenge in the courts at the place of enforcement.

c. specific performance and restitution;

An arbitral tribunal may be authorized by the parties or by the applicable law (either the substantive law or the lex arbitri, depending on the conflict - of- laws rule applicable) to order specific performance of a contract.

d. 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.

In practice, restitution is rarely ordered, since it is usually impracticable to undo the effects of the relevant breach(es) and to place the claimant in the position in which it would have been but for such breach(es).

e. injunctions

For present purposes, it is sufficient to state that an arbitral

tribunal is not usually empowered to make effective orders ag ainst third parties, and if injunctive relief against third parties is required, it is generally quicker and more effective to seek it directly from a national court

f. declaratory relief

A declaratory award establishes the legal position

definitively and has a binding effect as between the parties. It is a useful device, particularly where the parties have a continuing relationship and want to resolve a dispute without the risk of damaging that relationship by a demand

for monetary compensation. It is capable of recognition, but

it is not itself capable of enforcement; for the purposes of enforcement, an award must also involve an obligation to

pay compensation or to take, or refrain from taking, a particular course of action.

g. R ectification

If no express power is conferred by the arbitration

agreement, the question of the arbitral tribunal’s jurisdiction

to order rectification requires closer examination. For

example, a standard form arbitration clause that refers to ‘disputes arising under the contract’ is probably not wide enough to include a claim for rectification, since what is sought by rectification is a rewriting of the contract to reflect what one party claims to have been the agreement actually

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made. The phrase ‘in connection with’ in the arbitration clause may, however, be considered to give the arbitral tribunal a wider power.

h. filling gaps and adaptation of contracts

An arbitral tribunal does not, in general, have power to create, or write, a contract between the pa rties. Its role in a contractual dispute is usually to interpret the contract as signed by the parties. However, almost anything is possible by clear consent of the parties. In particular, it is generally accepted in modern times that an arbitral tribunal has implied consent to ‘fill gaps’ by making a determination as to the presumed intention of the parties in order to make a contract operable.

Hardship Clause: A device used for the adaptation of contracts

R ebus sic stantibus: allowing for a contract or a treaty to become inapplicable because of a fundamental change of circumstances.

i. I nterest

The right to interest will therefore flow from the parties’ underlying contract (that is, from a contractual provision for the levying of late payment interest), or by virtue of the applicable law.

In exercising this discretion, the tribunal will typically invite submissions and evidence from the parties on these issues in the same way as it would in respect of any other request

for relief. Thus , partie s will usually have an opportunity to set out their respective positions on the rate of interest to be applied .

If the law of the place of arbitration (the lex arbitri) forbids the payment of interest, it may theoretically be possible for the arbitral tri bunal to disregard this local law and apply the substantive law of the contract. But if the provisions of the local law are mandatory, there is a risk that the award could be attacked and rendered invalid under the law of the place where it was

made.

In general, it is also open to arbitrators to set a rate of post - award interest in any amount that they deem appropriate his is often the rate that would apply to a judgment in the country in which the award is made.

j.

Costs

costs of the tribunal’ (including the charges for administration of the arbitration by any arbitral institution);

‘costs of the arbitration’ (including hiring the hearing rooms, interpreters, transcript preparation, among other things); and

‘costs of the parties’ (including the costs of legal representation, expert witnesses, witness and other travel - related expenditure, among other things).

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Were costs claimed in the arbitration

i. Was it necessary to employ lawyers in the case in question?

ii. Is the amount of the costs reasona ble?

iii. Are the circumsta n ces of the particular case such as to make it reasonable to apportion such costs?

As with interest, and indeed all other matters concerning the powers of the tribunal, any specific provisions of the lex arbitri concerning costs must be respected. However, the practices of national courts in following their own rules in relation to awarding costs do not appear to be an appropriate guide for the way in which an international tribunal should exercise the discretion granted to it under either the relevant set of rules or the lex arbitri It is suggested that international tribunals, wherever the seat of arbitration, should be guided by the lex arbitri and by the applicable substantive law as to the scope of its discre tion, and by the applicable arbitration rules (if any) as to the exercise of that discretion.

Deliberations and Decisions of the Tribunal

there must obviously be some interchange of views between the members of the tribunal as they try to arrive at a decision that can be expressed in their award. This interchange of views may be characterised, as it is in the ICSID Arbitration Rules and in the French Civil Code, as a ‘deliberation’,

A rule of the confidentiality of the deliberations must, if it is to be effective, apply generally to the deliberation stage of a

tribunal’s proceedings and cannot realistically be confined to what is said in a formal meeting of all the members in the deliberation room. The form or forms the deliberation takes varies greatly from one tribunal to another. Anybody who has had experience of courts and tribunals knows perfectly well that much of the deliberation work, even in courts like the ICJ which have formal rules governing the deliberation, is done less formally. In particular the task of drafting is better done in small groups rather than by the whole court attempting to draft round the table. Revelations of such informal discussion and of suggestions made could be very damaging and seriously threaten the whole deliberatio n process.

Rule 15 of the ICSID Arbitration Rules states:

1. The deliberations of the Tribunal shall take place in private and remain secret.

2. Only members of the Tribunal shall take part in its deliberations. No other person shall be admitted unless the Trib unal decides otherwise.

The aim of the tribunal deliberations must be to achieve a unanimous award, since this will be seen as both authoritative and conclusive. If unanimity cannot be achieved, however, the next best thing is to have a majority award, ra ther than an award by the chairman alone— or no award at all.

In an international arbitration, each arbitrator, however appointed, is under a duty to act impartially and to reach a determination of the issues in a fair and unbiased manner. It follows that it would be improper if a party- nominated arbitrator were to hold private discussions with the party

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who nominated that arbitrator about the substance of the dispute.

Where there are a number of different issues, it is theoretically possible for the members of the arbitral tribunal to be split on some issues and unanimous on others. In such cases, the question arises as to whether all of the

issues should be decided by the presiding arbitrator alone (if this is permitted under the relevant rules of arbitra tion) or whether the award may be divided into various parts. If there is lack of unanimity in relation to one of many issues, the award as a whole will usually be issued by a majority. If there is no majority in relation to a number of issues, the award a s a whole should be that of the presiding arbitrator

if the relevant rules permit; otherwise, the arbitrators will

have to continue, in one way or another, to try to reach a majority decision.

- Concurring and dissenting opinions

A ‘separate’, or ‘concurring’, opinion is one that is given by

an arbitrator who agrees with the result of the arbitration, but who either does not agree with the reasoning or does not agree with the way in which the award is formulated.

When arbitrators dissent in international arbitrations, they often simply refuse to sign the award. Where this is done, the dissenting opinion may be annexed to the award if the other arbitrators agree, or it may be delivered to the parties separately. In either case, the dissenting opinion does not form part of the award itself: it is not an ‘award’, but an opinion.

Form and Cont ent of Awards

An arbitral tribunal should aim at rendering a correct, valid, and enforceable award.

- Form of the Award

In general, the requirements of form are dictated by the arbitration agreement (including t he rules of any arbitral institution chosen by the parties) and the law governing the arbitration (the lex arbitri).

The UNCITRAL Rules, for example, lay down the following requirements:

the award shall be made in writing;

the reasons upon which the award is based shall be stated;

the award shall be signed by the arbitrators, and shall contain the date on which and the place where it was made; and

where there are three arbitrators and one of them fails to sign, the award shall state the reason for the absence of the signature.

Law governing the arbitration - The requirements of form imposed by national systems of law vary from the comprehensive to the virtually non- existent.

Section 52 of the English Arbitration Act 1996:

1. The parties are free to agree on the form of an award.

2. If or to the extent that there is no such agreement, the following provisions apply.

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3. The award shall be in writing signed by all the arbitrators or all those assenting to the award.

4. The award shall contain the reasons for the award unless it is an agreed award or the parties have agreed to dispense with reasons.

5. The award shall state the seat of the arbitration and the date when the award is made.

- Introductory section of an award

Awards will often begin by setting out the names and 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. These may include an identification of the arbitration agreement or document containing the arbitration clause, a brief description of the disputes that have arisen between the parties, the relief claimed, and the way in which the arbitral tribunal was established, with dates, and any specific procedural agreement of the parties or rulings of the arbitral tribunal.

- Signatures

Some national systems of law require that all arbitrators

should sign the award in order for it to be valid

- Language of the award

The award will normally be rendered in the language of the arbitration, although occasionally it may be made either in the language that is the de facto working language of the arbitral tribun al or in the language that is most convenient for the parties. Any mandatory rule of law of the place of arbitration concerning the language of the award must be respected. It is a condition of recognition and enforcement

under the New York Convention that a foreign arbitral award must be accompanied by an officially certified translation into the language of the place in which recognition or enforcement of the award is sought, when this is not the language of the award .

- Contents of the Award

The contents of an award, like its form, are dictated primarily by the arbitration agreement and the law governing the arbitration (the le x arbitri).

Arbitration agreements usually provide that the award is to be final and binding upon the parties. It follows that the award should deal with all matters referred to arbitration, in so far as they have not been dealt with by any interim or partial awards.

However, arbitration agreements rarely go on to describe the content of the award; the nearest they get is to incorporate a set of arbitration rules. Such rules invariably also provide that the award should deal with such matters as the costs of the arbitration and the payment of interest. The rules may also provide that the award shall state the reasons upon which it is based. Even if not specifically required, the giving of reasons is a practice that should be followed unless there is some very good reason why it should not be .

- Unambiguous

Most national system s of law require an award to be unambiguous and dispositive Ambiguity is often capable of being cured, either by the arbitral tribunal interpreting the award at

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the request of the parties (or occasionally at the request of only one of them), or by an application to the relevant national court for an order that the award should be remitted to the arbitra l tribunal for clarification. The position is similar where the award contains provisions that are inconsistent.

- Determination of the issues

An award must also be dispositive, in that it must constitute an effective determination of the issues in dispute .

The award must be formulated in an imperative tone: ‘we award’, ‘we direct’, ‘we order’, or the equivalent.

An award should not direct the parties to perform an illegal act or require the parties to do anything that may be considered contrary to public policy, nor may the award contain any directions that are outside the scope of authority of the arbitral tribunal

- Reasons

The essential reasoning underlying the decision . The ICSID Convention calls for a reasoned award, without any exceptions, and in practice the ICC Court deems awards that are insufficiently reasoned to be defective as to form.

The UNCITRAL Rules take the same approach as the Model Law: reasons should be given, unless the parties agree otherwise.

European Convention on International Commercial Arbitration of 1961, Article VIII states:

The parties shall be presumed to have agreed that reasons shall be given for the award unless they

1. either expressly declare that reasons shall not be given; or

2. have assented to an arbitral procedure under which it is not customary to give reasons for awards, provided that in this case neither party requests before the end of the hearing, or if there has not been a hearing then before the making of the award, that reasons be given.

- Time Limits

A limit may be imposed as to the time within which the

arbitral tribunal must make its award. When this limit is

reached, the authority or mandate of the arbitral tribunal is

at an end and it no longer has jurisdiction to make a valid

award.

It is important that a fixed time limit for rendering the award should not enable one of the parties to frustrate the arbitration

- Notification of Awards

The UNCITRAL Rules provide, at Article 34(6), that ‘ copies of

the award signed by the arbitrators shall be communicated

to the parties by the arbitral tribunal’.

However, no time limit is imposed within which this must be done. The position is similar under the ICSID Arbitration Rules, Rule 48(1) of which merely states that a certified copy

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of the award (including individual opinions and statements of dissent) will be sent to the parties ‘promptly’ when the last arbitrator has signed it. Article 34(1) of the ICC Rules provides that the Secretariat will notify the parties once an award has been made, provided that the costs have been fully paid.

The time limit within which a party may apply to the appropriate court for recourse against the award often runs from the date of communication of the award and not from the making of the a ward itself.

- Registration or deposit of awards

R egistration is a matter that may affect the validity of the award if the mandatory provisions of the place in which the arbitration is held require it. Where the requirement is mandatory, it must be deposited in order to protect the validit y of the award.

In some cases, registration of the award is relevant for the purposes of the time limit within which any application for nullification of the award must be made. Although registration will not necessarily assist the successful party in relat ion to enforcement actions in other countries, it may protect the award from any further challenge in the country in which the arbitration took place.

Effect of Awards

an award may often have a significant indirect effect on persons who were

1 ILA Recommendations – Recommendation 3 Part 2

not parties to the arbitration. For example, a third party may be affected by an award where one person is jointly liable with another who is a party to the arbitration. The award would not be res judicata in any subsequent claim against that third party, but it should be of persuasive significance in that a tribunal is likely to consider the findings of the earlier award to inform its own findings. Conversely, it is possible that an award (even if unsatisfied) against one of the persons who was jointly liable would have the effect of discharging the third party’s liability.

Res Judicata - 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.

The doctrine of res judicata can be applicable in international arbitration in a variety of ways. Broadly, there are three different aspects of res judicata: 1

a) first, the effect of an award on existing disputes between the parties

The doctrine of res judicata can be applicable in international arbitration in a variety of ways . Broadly, there are three different aspects of res judicata: first, the effect of an award on

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existing disputes between the parties; secondly, its effect on subsequent disputes between the parties; and thirdly, its effect on third parties. to bar claims that could have been, but were not, asserted in a prior arbitral proceeding. However, if the award is deemed invalid and is set aside by a court of competent jurisdiction, the nullified award does not operate as res judicata in any subsequent p roceedings.

b) secondly, its effect on su bsequent disputes between the parties;

Where there are subsequent disputes between the same parties, more difficult questions arise. Because there is no doctrine of stare decisis in arbitration, the pre vious decision of an arbitral tribunal will not be binding on any subsequent disputes that arise between the same parties over different subject matter or a different cause of action (even if related). But it does not follow that a previous decision will n ecessarily be irrelevant to the resolution of a subsequent dispute between the same parties. It is necessary to consider the principle of issue estoppel. This precludes a party in subsequent proceedings from contradicting an issue of fact or the legal consequences of a fact that has already been raised and decided in earlier proceedings between the same parties, even if the causes of action in both proceedings are not identical

c) thirdly, its effect on third parties.

an award may often have a significant indirect effect on persons who were not parties to the arbitration. For example, a third party may be affected by an award where

one person is jointly liable with another who is a party to the arbitration. The award would not be res judicata in any subsequent claim ag ainst that third party, but it should be of persuasive significance in that a tribunal is likely to consider the findings of the earlier award to inform its own findings. Conversely, it is possible that an award (even if unsatisfied) against one of the per sons who was jointly liable would have the effect of discharging the third party’s liability.

Proceedings after the Award

Exceptions to the general rule that an arbitral tribunal becomes functus officio on the issue of a final award arise from specific provisions of the national system of law governing the arbitration, from the parties’ arbitration agreement, or from any rules of arbitration adopted by them.

The ‘interpretation’, or ‘clarification’, of a final award The Model Law provides for interpretation of a specific point or a part of the award only when the parties agree that such a request should be made to the tribuna l. The problem with ‘interpretation’, as opposed to ‘correction’, of an award is that it risks giving the aggrieved party an opportunity to reopen the case.

Under National Law - 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 .

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Under Rules of Arbitration - Exceptions to the general rule of functus officio vary considerably under different sets o f arbitration rules. The LCIA Rules contain an express power for the arbitral tribunal to correct accidental mistakes or omissions, but not to make interpretations of awards. The UNCITRAL Rules contain powers for the arbitral tribunal to correct its award, issue additional awards, and interpret its award (if so requested) within narrow time limits. The correction of an award (normally in relation to cl erical or typographical errors) may take place either at the request of the party or on the initiative of the arbitral tribunal itself .

Review procedures other tha n by National Courts - in a limited number of cases, there may be a prior review of awards by some other authority.

1. In certain specialized types of arbitration, particularly in the commodity trades, there is usually provision for either party to appeal to a specially constituted arbitral appeals tribunal

2. I n a small number of countries, parties may raise an objection to an award before a body other than a national court

3.

In the ICC system, the award must not be signed by the arbitral tribunal until it has been scrutinized by the ICC Court

R eview of Award way of S ettlement - After the award has been made, parties can also settle a dispute by voluntarily agreeing to vary the terms of the award themselves.

Publication of Awards - The ICDR Rules provide that, unless otherwise agreed by the parties, selected awards may be made publicly available, with the names of the parties and other identifying features removed. There are other circumstances in which, even without the consent of the parties, an award may find its way into the public domain. This may occur, for example, during court proceedings to challenge or enforce an award, or when a publicly quoted corporation is obliged to disclose in its published accounts material information relating to its liabilities

By: Atty. Anna De Jesus (Philippines)