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CHAPTER 7 – ROLE OF NATIONAL COURTS DURING THE 2. the establishment of the tribunal; and
- If the parties have failed to make adequate
Arbitration is dependent on the underlying support of the provision intervention of a national court may be
courts, which alone have the power to rescue the system when required; national court must also intervene to
one party seeks to sabotage it. decide any
- challenge to the independence or impartiality of an
Most states restrict the possibility of arbitration to disputes arbitrator
that the state itself regards as being legally capable of being
settled by arbitration. 2. challenges to jurisdiction
- whilst any challenge to the jurisdiction of an arbitral
The state prescribes the boundaries of arbitration and enforces tribunal may be dealt with initially by the tribunal
these boundaries through its courts. The state also determines itself, the final decision on jurisdiction rests with the
other limitations upon the arbitral process: whether, for relevant national court
arbitrators have the power to compel the attendance of During the Arbitral Proceedings
witnesses or the disclosure of documents, and, more
importantly, whether or not any appeal to the national court is 1. Interim Measures – Powers of the Tribunal
possible, and if so, how, when, and upon what terms. the
arbitral process remains subject to the arbitration law of the - five situations in which the tribunal’s powers may
country in which it has its juridical seat and that of the country, be insufficient:
or countries, in which a winning party may seek to recognize or a. No Powers
enforce the eventual award. b. Inability to act prior to the formation of the
At the Beginning of the Arbitration c. An order can affect only the parties to the
Three situations in which the intervention of the court may be d. Enforcement difficulties (i.e. 3rd parties)
necessary at the beginning of the arbitral process: e. No Ex Parte Application

1. the enforcement of the arbitration agreement; 2. Interim Measures – Powers of the competent court

By: Atty. Anna De Jesus (Philippines)


- Article 9 of the Model Law also states categorically

that: ‘It is not incompatible with an arbitration § Measures aimed at preserving the status quo -
agreement for a party to request, before or during if the application for interim measures is made
arbitral proceedings, from a court an interim to a national court, rather than to the arbitral
measure of protection and for a court to grant such tribunal itself, the court will have to consider
measure whether it has the power to act, and if so,
whether, in the particular circumstances, it
- As to the question of whether to seek interim relief should act.
from the relevant court or the arbitral tribunal,
much depends on the relevant law and the nature § Interim relief in respect of parallel proceedings
of the relief sought. Where an application is made - fact pattern is often similar: a dispute arises
to a national court for interim measures, a judge between a foreign party and a state, or state-
may be reluctant to make a decision that risks owned entity, which has signed an arbitration
prejudicing the outcome of the arbitration. agreement. The state entity wishes to sabotage
the arbitral proceedings and have the case
§ Measures relating to the attendance of remitted for judicial determination in its own
witnesses – to compel attendance. courts. It therefore seeks an injunction before
those courts, seeking to challenge the
§ Measures related to the preservation of jurisdiction of the tribunal, and an order
evidence - example, section 44 of the English requiring the arbitrators and adverse party to
Arbitration Act 1996 grants to the courts in suspend or abandon the arbitral proceedings
cases of urgency the same powers in on pain of daily fines (or worse).
arbitration to order the preservation of
evidence, or the inspection, photographing, or At the End of the Arbitration
preservation of property, as in court
proceedings. The extent to which, if at all, national courts should exercise
judicial control over the conduct of international arbitrations
§ Measures related to documentary disclosure - and the resulting award.
arbitral tribunal’s power to order disclosure of
documents is generally limited to the parties to CHAPTER 8 - ARBITRATION UNDER INVESTMENT TREATIES
the arbitration. (not included in Exam)

By: Atty. Anna De Jesus (Philippines)


parties have submitted.’

Award’ means a final award which disposes of all issues
Parties to transborder transactions who go to the trouble and submitted to the arbitral tribunal and any other decision of
expense of taking their disputes to international arbitration do the arbitral tribunal which finally determines any question
so in the expectation that, unless a settlement is reached along of substance or the question of its competence or any other
the way, the process will lead to an award. question of procedure but, in the latter case, only if the
arbitral tribunal terms its decision 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 The time limit for challenge of an award begins to run from
parties shall carry out all awards without delay.’ the date on which the award was issued. Once the final
award has been made, it may be impossible for a party to
All ‘awards’ are ‘final’ in the sense that they dispose ‘finally’ of challenge any
element in it that flows from a previously unchallenged
the issues decided in them
partial award. Moreover, only an ‘award’ will qualify for
(subject to any challenge or procedure for correction or
recognition and enforcement under the relevant
interpretation), and they are ‘binding’ on the parties. The
international conventions,
award that disposes ‘finally’ of all outstanding issues is known including the New York Convention.
as the ‘final award’. A final award, in this sense, is usually the
outcome of arbitral proceedings that have been contested b. Award vs. Order
throughout. However, it may embody an agreed settlement
between the parties, in which case it is generally known as a Case: Brasoil
‘consent award’, or an ‘award on agreed terms’. Another
category is an award in proceedings in which a party has failed The Cour de Cassation held that ‘only proper arbitral awards
or refused to participate, in which case it is usually described as may be challenged through an action to set aside’ and went on
a ‘default award’. to define awards as: “ … decisions made by the arbitrators which
resolve in a definitive manner all or part of the dispute that is
a. Definition of an Award submitted to them on the merits, jurisdiction or a procedural
matter which leads them to put an end to the proceedings”
Article I(2) NYC: ‘The term “arbitral awards” shall include not
only awards made by arbitrators appointed for each case but c. Rendering an internationally enforceable award
also those made by permanent arbitral bodies to which the

By: Atty. Anna De Jesus (Philippines)


Article 41 of the ICC Rules provides: ‘In all matters not expressly - Examples of where a partial award is likely to prove
provided for in the Rules, the Court and the arbitral tribunal useful:
shall act in the spirit of these Rules and shall make every effort
to make sure that the award is enforceable at law. i. Issues concerning the applicable law
ii. Separation of issues (jurisdiction, liability,
For an arbitral tribunal to achieve the standard of quantum)
performance required to make an internationally iii. Limitation clauses in a contract
enforceable award, it must first ensure that it has
jurisdiction to decide all of the issues before it. The arbitral b. Foreign and Domestic Awards
tribunal must also comply with any procedural rules
governing the arbitration. The arbitral tribunal must also - In India, the Foreign Awards (Recognition &
sign and date the award, and arrange for it to be delivered to Enforcement) Act 1961 defines a foreign award as an
the parties in the manner laid down in the relevant law or by award made in another country on differences
the rules that apply to the arbitration. between persons arising out of legal relationships,
whether contractual or not, considered to be
Article V(2)(b) NYC: Recognition and enforcement of an commercial under the law in force in India.
arbitral award may also be refused if the competent Conversely, the Indian Supreme Court has held that
authority in the country where recognition and enforcement the term ‘domestic award’ means an award made in
is sought finds that … the recognition or enforcement of the India whether or not this is in a purely domestic
award would be contrary to the public policy of that country. context; thus, the definition will include a
‘domestically rendered’ award in a domestic
Categories of Award arbitration or in an international arbitration.

a. Partial Awards c. Default Awards

- effective way of determining matters that are - When international arbitrations are commenced in
susceptible to determination during the course of the which one party (usually the respondent) fails or
proceedings, and which, once determined, may save refuses to take part. The task of an arbitral tribunal is
considerable time and money for all involved. not to ‘rubber stamp’ claims that are presented to it;
rather, it must make a determination of these claims,
- Power to issue may derive from the arbitration so the tribunal must take upon itself the burden of
agreement, the applicable rules or the applicable law. testing the assertions made by the active party, and it
must call for such evidence and legal argument as it

By: Atty. Anna De Jesus (Philippines)


may require for this purpose. If the arbitral tribunal obligation is contained in an award (in respect of
makes an award in favour of the active party in the which the assistance of the New York Convention
proceedings, it will wish to ensure that the award is may be available), rather than to take further steps to
effective. enforce a settlement agreement.

- it should ensure, in particular, that the award recites Article 30 of the Model Law provides for such an agreed
in considerable detail the procedure followed by the award.
arbitral tribunal and the efforts made by the arbitral
tribunal to communicate the active party’s case to the Remedies
defaulting party, so as to give that party every
opportunity to present its own arguments and The arbitral tribunal’s power to grant appropriate relief is
evidence. based on the arbitration agreement and the applicable
arbitration law.
d. Additional Awards
Arbitration awards may cover a range of remedies,
- When the tribunal renders an award that does not including:
address all of the issues presented, the parties may,
within a limited time frame, request an additional a. monetary compensation
award to remedy this gap.
directs the payment of a sum of money by one party to the
e. Consent Awards and terminations of proceedings other. This payment may represent money due under a
without an award contract (debt), or compensation (damages) for loss
suffered, or both. The sum of money awarded is usually
- parties to an international arbitration often arrive at expressed in the currency of the contract or the currency of
a settlement during the proceedings. Where this the loss.
occurs, the parties may simply implement the
settlement agreement and thus revoke the mandate Under many national arbitration laws, arbitral tribunals
of the arbitral tribunal. In many cases, the parties find have discretion to make awards in any currency deemed
it desirable for the terms of settlement to be appropriate. à Lesotho Highlands case
embodied in an award.
b. punitive damages and other penalties
- it is usually easier for a party to enforce performance
by the other party of a future obligation if that

By: Atty. Anna De Jesus (Philippines)


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. e. injunctions

The question of whether an arbitral tribunal has the power For present purposes, it is sufficient to state that an arbitral
to impose penal sanctions depends on the law of the place of tribunal is not usually empowered to make effective orders
arbitration (the lex arbitri) and the provisions of the against third parties, and if injunctive relief against third
arbitration parties is required, it is generally quicker and more effective
agreement. to seek it directly from a national court

it is preferable for arbitral tribunals to treat any award in f. declaratory relief
respect of punitive damages or any other penalties as an
entirely separate claim, in order to ensure that the punitive A declaratory award establishes the legal position
portion of the award is severable in the event of a successful definitively and has a binding effect as between the parties.
challenge in the courts at the place of enforcement. It is a useful device, particularly where the parties have a
continuing relationship and want to resolve a dispute
c. specific performance and restitution; without the risk of damaging that relationship by a demand
for monetary compensation. It is capable of recognition, but
An arbitral tribunal may be authorized by the parties or by it is not itself capable of enforcement; for the purposes of
the applicable law (either the substantive law or the lex enforcement, an award must also involve an obligation to
arbitri, depending on the conflict-of-laws rule applicable) to pay compensation or to take, or refrain from taking, a
order specific performance of a contract. particular course of action.

d. Restitution g. Rectification

seeks to put the aggrieved party in the same position as that If no express power is conferred by the arbitration
in which it would have been had the wrongful act not taken agreement, the question of the arbitral tribunal’s jurisdiction
place. to order rectification requires closer examination. For
example, a standard form arbitration clause that refers to
In practice, restitution is rarely ordered, since it is usually ‘disputes arising under the contract’ is probably not wide
impracticable to undo the effects of the relevant breach(es) enough to include a claim for rectification, since what is
and to place the claimant in the position in which it would sought by rectification is a rewriting of the contract to reflect
have been but for such breach(es). what one party claims to have been the agreement actually

By: Atty. Anna De Jesus (Philippines)


made. The phrase ‘in connection with’ in the arbitration for relief. Thus, parties will usually have an opportunity to
clause may, however, be considered to give the arbitral set out their respective positions on the rate of interest to be
tribunal a wider power. applied.

h. filling gaps and adaptation of contracts If the law of the place of arbitration (the lex arbitri) forbids
the payment of interest, it may theoretically be possible for
An arbitral tribunal does not, in general, have power to the arbitral tribunal to disregard this local law and apply the
create, or write, a contract between the parties. Its role in a substantive law of the contract. But if the provisions of the
contractual dispute is usually to interpret the contract as local law are mandatory, there is a risk that the award could
signed by the parties. However, almost anything is possible be attacked and rendered invalid under the law of the place
by clear consent of the parties. In particular, it is generally where it was
accepted in modern times that an arbitral tribunal has made.
implied consent to ‘fill gaps’ by making a determination as to
the presumed intention of the parties in order to make a In general, it is also open to arbitrators to set a rate of post-
contract operable. award interest in any amount that they deem appropriate
his is often the rate that would apply to a judgment in the
Hardship Clause: A device used for the adaptation of country in which the award is made.
j. Costs
Rebus sic stantibus: allowing for a contract or a treaty to
become inapplicable because of a fundamental change of • ‘costs of the tribunal’ (including the charges for
circumstances. administration of the arbitration by any arbitral
i. Interest
• ‘costs of the arbitration’ (including hiring the hearing
The right to interest will therefore flow from the parties’ rooms, interpreters, transcript preparation, among
underlying contract (that is, from a contractual provision for other things); and
the levying of late payment interest), or by virtue of the
applicable law.

• ‘costs of the parties’ (including the costs of legal
In exercising this discretion, the tribunal will typically invite
representation, expert witnesses, witness and other
submissions and evidence from the parties on these issues
travel-related expenditure, among other things).
in the same way as it would in respect of any other request

By: Atty. Anna De Jesus (Philippines)


tribunal’s proceedings and cannot realistically be confined

Were costs claimed in the arbitration.. to what is said in a formal meeting of all the members in the
deliberation room. The form or forms the deliberation takes
i. Was it necessary to employ lawyers in the case in varies greatly from one tribunal to another. Anybody who
question? has had experience of courts and tribunals knows perfectly
ii. Is the amount of the costs reasonable? well that much of the deliberation work, even in courts like
iii. Are the circumstances of the particular case such as the ICJ which have formal rules governing the deliberation,
to make it reasonable to apportion such costs? is done less
formally. In particular the task of drafting is better done in
As with interest, and indeed all other matters concerning the small groups rather than by the whole court attempting to
powers of the tribunal, any specific provisions of the lex draft round the table. Revelations of such informal
arbitri concerning costs must be respected. However, the discussion and of suggestions made could be very damaging
practices of national courts in following their own rules in and seriously threaten the whole deliberation process.
relation to awarding costs do not appear to be an
appropriate guide for the way in which an international Rule 15 of the ICSID Arbitration Rules states:
tribunal should exercise the discretion granted to it under 1. The deliberations of the Tribunal shall take place in
either the relevant set of rules or the lex arbitri It is private and remain secret.
suggested that international tribunals, wherever the seat of 2. Only members of the Tribunal shall take part in its
arbitration, should be guided by the lex arbitri and by the deliberations. No other person shall be admitted
applicable substantive law as to the scope of its discretion, unless the Tribunal decides otherwise.
and by the applicable arbitration rules (if any) as to the
exercise of that discretion. The aim of the tribunal deliberations must be to achieve a
unanimous award, since this will be seen as both
Deliberations and Decisions of the Tribunal authoritative and conclusive. If unanimity cannot be
achieved, however, the next best thing is to have a majority
there must obviously be some interchange of views between award, rather than an award by the chairman alone—or no
the members of the tribunal as they try to arrive at a decision award at all.
that can be expressed in their award. This interchange of
views may be characterised, as it is in the ICSID Arbitration In an international arbitration, each arbitrator, however
Rules and in the French Civil Code, as a ‘deliberation’, appointed, is under a duty to act impartially and to reach a
determination of the issues in a fair and unbiased manner. It
A rule of the confidentiality of the deliberations must, if it is follows that it would be improper if a party-nominated
to be effective, apply generally to the deliberation stage of a arbitrator were to hold private discussions with the party

By: Atty. Anna De Jesus (Philippines)


who nominated that arbitrator about the substance of the Form and Content of Awards
An arbitral tribunal should aim at rendering a correct, valid,
Where there are a number of different issues, it is and enforceable award.
theoretically possible for the members of the arbitral
tribunal to be split on some issues and unanimous on others. - Form of the Award
In such cases, the question arises as to whether all of the
issues should be decided by the presiding arbitrator alone (if In general, the requirements of form are dictated by the
this is permitted under the relevant rules of arbitration) or arbitration agreement (including the rules of any arbitral
whether the award may be divided into various parts. If institution chosen by the parties) and the law governing the
there is lack of unanimity in relation to one of many issues, arbitration (the lex arbitri).
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 The UNCITRAL Rules, for example, lay down the following
award as a whole should be that of the presiding arbitrator requirements:
if the relevant rules permit; otherwise, the arbitrators will • the award shall be made in writing;
have to continue, in one way or another, to try to reach a • the reasons upon which the award is based shall be
majority decision. stated;
• the award shall be signed by the arbitrators, and shall
- Concurring and dissenting opinions contain the date on which and the place where it was
made; and
A ‘separate’, or ‘concurring’, opinion is one that is given by • where there are three arbitrators and one of them
an arbitrator who agrees with the result of the arbitration, fails to sign, the award shall state the reason for the
but who either does not agree with the reasoning or does not absence of the signature.
agree with the way in which the award is formulated.
Law governing the arbitration - The requirements of form
When arbitrators dissent in international arbitrations, they imposed by national systems of law vary from the
often simply refuse to sign the award. Where this is done, the comprehensive to the virtually non-existent.
dissenting opinion may be annexed to the award if the other
arbitrators agree, or it may be delivered to the parties Section 52 of the English Arbitration Act 1996:
separately. In either case, the dissenting opinion does not 1. The parties are free to agree on the form of an award.
form part of the award itself: it is not an ‘award’, but an 2. If or to the extent that there is no such agreement, the
opinion. following provisions apply.

By: Atty. Anna De Jesus (Philippines)


3. The award shall be in writing signed by all the under the New York Convention that a foreign arbitral
arbitrators or all those assenting to the award. award must be accompanied by an officially certified
4. The award shall contain the reasons for the award translation into the language of the place in which
unless it is an agreed award or the parties have recognition or enforcement of the award is sought, when this
agreed to dispense with reasons. is not the language of the award.
5. The award shall state the seat of the arbitration and
the date when the award is made. - Contents of the Award

- Introductory section of an award The contents of an award, like its form, are dictated
Awards will often begin by setting out the names and primarily by the arbitration agreement and the law
addresses of the parties, and the names and contact details governing the arbitration (the lex arbitri).
of their representatives. The award will then usually contain
a brief narrative setting out a number of facts relating to the Arbitration agreements usually provide that the award is to
arbitration. These may include an identification of the be final and binding upon the parties. It follows that the
arbitration agreement or document containing the award should deal with all matters referred to arbitration, in
arbitration clause, a brief description of the disputes that so far as they have not been dealt with by any interim or
have arisen between the parties, the relief claimed, and the partial awards.
way in which the arbitral tribunal was established, with
dates, and any specific procedural agreement of the parties However, arbitration agreements rarely go on to describe
or rulings of the arbitral tribunal. the content of the award; the nearest they get is to
incorporate a set of arbitration rules. Such rules invariably
- Signatures also provide that the award should deal with such matters as
Some national systems of law require that all arbitrators the costs of the arbitration and the payment of interest. The
should sign the award in order for it to be valid rules may also provide that the award shall state the reasons
upon which it is based. Even if not specifically required, the
- Language of the award giving of reasons is a practice that should be followed unless
The award will normally be rendered in the language of the there is some very good reason why it should not be.
arbitration, although occasionally it may be made either in
the language that is the de facto working language of the - Unambiguous
arbitral tribunal or in the language that is most convenient Most national systems of law require an award to be
for the parties. Any mandatory rule of law of the place of unambiguous and dispositive Ambiguity is often capable of
arbitration concerning the language of the award must be being cured, either by the arbitral tribunal interpreting the
respected. It is a condition of recognition and enforcement award at

By: Atty. Anna De Jesus (Philippines)


the request of the parties (or occasionally at the request of The parties shall be presumed to have agreed that reasons
only one of them), or by an application to the relevant shall be given for the award unless they
national court for an order that the award should be
remitted to the arbitral tribunal for clarification. The 1. either expressly declare that reasons shall not be
position is similar where the award contains provisions that given; or
are inconsistent.
2. have assented to an arbitral procedure under which
- Determination of the issues it is not customary to give reasons for awards,
An award must also be dispositive, in that it must constitute provided that in this case neither party requests
an effective determination of the issues in dispute. before the end of the hearing, or if there has not been
a hearing then before the making of the award, that
The award must be formulated in an imperative tone: ‘we reasons be given.
award’, ‘we direct’, ‘we order’, or the equivalent.
- Time Limits
An award should not direct the parties to perform an illegal A limit may be imposed as to the time within which the
act or require the parties to do anything that may be arbitral tribunal must make its award. When this limit is
considered contrary to public policy, nor may the award reached, the authority or mandate of the arbitral tribunal is
contain any directions that are outside the scope of authority at an end and it no longer has jurisdiction to make a valid
of the arbitral tribunal award.

- Reasons It is important that a fixed time limit for rendering the award
The essential reasoning underlying the decision. The ICSID should not enable one of the parties to frustrate the
Convention calls for a reasoned award, without any arbitration
exceptions, and in practice the ICC Court deems awards that
are insufficiently reasoned to be defective as to form. - Notification of Awards
The UNCITRAL Rules provide, at Article 34(6), that‘ copies of
The UNCITRAL Rules take the same approach as the Model the award signed by the arbitrators shall be communicated
Law: reasons should be given, unless the parties agree to the parties by the arbitral tribunal’.
However, no time limit is imposed within which this must be
European Convention on International Commercial done. The position is similar under the ICSID Arbitration
Arbitration of 1961, Article VIII states: Rules, Rule 48(1) of which merely states that a certified copy

By: Atty. Anna De Jesus (Philippines)


of the award (including individual opinions and statements not parties to the arbitration. For example, a third
of dissent) will be sent to the parties ‘promptly’ when the last party may be affected by an award where one
arbitrator has signed it. Article 34(1) of the ICC Rules person is jointly liable with another who is a party to
provides that the Secretariat will notify the parties once an
award has been made, provided that the costs have been
the arbitration. The award would not be res
fully paid. judicata in any subsequent claim against that third
party, but it should be of persuasive significance
The time limit within which a party may apply to the in that a tribunal is likely to consider the findings of
appropriate court for recourse against the award often runs the earlier award to inform its own findings.
from the date of communication of the award and not from Conversely, it is possible that an award (even if
the making of the award itself. unsatisfied) against one of the persons who was

- Registration or deposit of awards
jointly liable would have the effect of discharging the
third party’s liability.
Registration is a matter that may affect the validity of the Res Judicata - a legal right or obligation, or any facts,
award if the mandatory provisions of the place in which the specifically put in issue and determined by a court or
arbitration is held require it. Where the requirement is tribunal of competent jurisdiction cannot later be put back
mandatory, it must be deposited in order to protect the into question as between the same parties.
validity of the award.
The doctrine of res judicata can be applicable in
In some cases, registration of the award is relevant for the international arbitration in a variety of ways. Broadly, there
purposes of the time limit within which any application for are three different aspects of res judicata: 1
nullification of the award must be made. Although
registration will not necessarily assist the successful party in a) first, the effect of an award on existing disputes
relation to enforcement actions in other countries, it may between the parties
protect the award from any further challenge in the country
in which the arbitration took place. The doctrine of res judicata can be applicable in
international arbitration in a variety of ways. Broadly, there
Effect of Awards are three different aspects of res judicata: first, the effect of
an award may often have a significant indirect effect an award on
on persons who were
ILA Recommendations – Recommendation 3 Part 2

By: Atty. Anna De Jesus (Philippines)


existing disputes between the parties; secondly, its effect on one person is jointly liable with another who is a party to the
subsequent disputes between the parties; and thirdly, its arbitration. The award would not be res judicata in any
effect on third parties. to bar claims that could have been, but subsequent claim against that third party, but it should be of
were not, asserted in a prior arbitral proceeding. However, persuasive significance in that a tribunal is likely to consider
if the award is deemed invalid and is set aside by a court of the findings of the earlier award to inform its own findings.
competent jurisdiction, the nullified award does not operate Conversely, it is possible that an award (even if unsatisfied)
as res judicata in any subsequent proceedings. against one of the persons who was jointly liable would have
the effect of discharging the third party’s liability.
b) secondly, its effect on subsequent disputes between
the parties; Proceedings after the Award

Where there are subsequent disputes between the same Exceptions to the general rule that an arbitral tribunal
parties, more difficult questions arise. Because there is no becomes functus officio on the issue of a final award arise
doctrine of stare decisis in arbitration, the previous decision from specific provisions of the national system of law
of an arbitral tribunal will not be binding on any subsequent governing the arbitration, from the parties’ arbitration
disputes that arise between the same parties over different agreement, or from any rules of arbitration adopted by them.
subject matter or a different cause of action (even if related).
But it does not follow that a previous decision will The ‘interpretation’, or ‘clarification’, of a final award The
necessarily be irrelevant to the resolution of a subsequent Model Law provides for interpretation of a specific point or
dispute between a part of the award only when the parties agree that such a
the same parties. It is necessary to consider the principle of request should be made to the tribunal. The problem with
issue estoppel. This precludes a party in subsequent ‘interpretation’, as opposed to ‘correction’, of an award is
proceedings from contradicting an issue of fact or the legal that it risks giving the aggrieved party an opportunity to
consequences of a fact that has already been raised and reopen the
decided in earlier proceedings between the same parties, case.
even if the causes of action in both proceedings are not
identical Under National Law - Many systems of national law with
developed arbitral rules permit the correction of minor
c) thirdly, its effect on third parties. clerical or typographical errors in awards, either at the
request of one or both of the parties, or by the arbitral
an award may often have a significant indirect effect on tribunal on its own initiative.
persons who were not parties to the arbitration. For
example, a third party may be affected by an award where

By: Atty. Anna De Jesus (Philippines)


Under Rules of Arbitration - Exceptions to the general rule of Publication of Awards - The ICDR Rules provide that, unless
functus officio vary considerably under different sets of otherwise agreed by the parties, selected awards may be
arbitration rules. The LCIA Rules contain an express power made publicly available, with the names of the parties and
for the arbitral tribunal to correct accidental mistakes or other identifying features removed. There are other
omissions, but not to make interpretations of awards. The circumstances in which, even without the consent of the
UNCITRAL Rules contain powers for the arbitral tribunal to parties, an award may find its way into the public domain.
correct its award, issue additional awards, and interpret its This may occur, for example, during court proceedings to
award (if so requested) within narrow time limits. The challenge or enforce an award, or when a publicly quoted
correction of an award (normally in relation to clerical or corporation is obliged to disclose in its published accounts
typographical errors) may take place either at the request of material information relating to its liabilities
the party or on the initiative of the arbitral tribunal itself.

Review procedures other than 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. In 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

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

By: Atty. Anna De Jesus (Philippines)