Writing the Award – Practice Exercise
How to help write an arbitral award
Writing an arbitral award for arbitrators – making the process quicker, and hopefully earning the sympathy of the tribunal at the same time.
Structure of an award
To understand how you can help, you must first know how an award is constructed. Typically, there are three main parts:
Overview of the arbitration: here the tribunal sets out what has happened in the arbitration. This demonstrates to a court at a later date (at the enforcement stage, or if there is a challenge to the award) that the procedure has run properly;
Overview of the parties’ arguments: this shows that the tribunal has understood the issues in the case, and has taken into account what each party has said about them; and the tribunal’s analysis: this is the main part of the award, in which the tribunal weighs up the arguments and the evidence, and comes to a conclusion.
It is in the parties’ interests for the tribunal to focus on the third part of the award rather than the first two, and for the task in the third part to be made as straightforward as possible.
The Formalities of an Arbitration Award
The writing of a reasoned and enforceable award is, without question, the key responsibility of an arbitrator. Yet, there are strikingly few practical guides available to assist arbitrators in performing this key responsibility.
When reviewing awards, it is also clear how different they can be in form: a reflection of the specifics of a dispute, the culture of the arbitrator(s) and parties, and the requirements of parties. This rich diversity of approach is of course a natural consequence of party autonomy and diversity of cultures in the field of international arbitration, and is to be encouraged. However, for the first time arbitrator, the search for a helpful starting point can be difficult, especially when many awards in the field of commercial arbitration remain confidential and unpublished.
As a starting point, it is of vital importance for an arbitrator to be aware what requirements must be met in order for a document to qualify as an arbitral award and for certain legal consequences to follow as a result.
Article 212(5) provides as follows:
“The arbitrators’ award shall be passed by a majority and shall be made in writing and accompanied by the dissenting vote. In particular, the award shall contain a copy of the arbitration agreement, a summary of the statements of the parties, their documents, the grounds and context of the award, the date and place of issue and the signatures of the arbitrators. Should one or more arbitrators refuse to sign the award, such refusal shall be stated in the award; provided, however, that the award shall be valid if signed by a majority of the arbitrators.”
Article 212(7) provides as follows:
“The award shall be deemed to have been issued from the date of signing the same by the arbitrators.”
UAE Federal Law No. (6) of 2018 on Arbitration
Form and Contents of Award
- The arbitral award shall be made in writing.
- In arbitral proceedings with more than one arbitrator, the award shall be issued by majority opinion. If different opinions of the arbitrators would rule out a majority, the presiding Arbitrator shall issue the award, unless otherwise agreed by the Parties. In such case, the dissenting opinions shall be noted in writing or enclosed and shall form an integral part of the award.
- The award shall be signed by the arbitrators and the signatures of the majority of the arbitrators shall suffice, provided that the reason for any omitted signature is stated.
- The award shall state the reasons upon which it is based, unless the Parties have agreed otherwise, or the law applicable to the arbitral proceedings does not require reasons to be given.
- The arbitral award shall include the names and addresses of the Parties, the names of the arbitrators, their nationalities and addresses, the text of the Arbitration Agreement, a summary of the Parties’ claims, statements and documents, the order made and the reasons on which the award is based, if required to be stated, and the date and place of issue of the award.
- Unless otherwise agreed by the Parties, the arbitral award shall be deemed issued at the place of arbitration as determined in accordance with Article 28 of this Law, notwithstanding that it may have been signed by the members of the Arbitral Tribunal outside the place of arbitration, and irrespective of how the award was signed, whether by all the members of the Arbitral Tribunal at one sitting or separately by each member to whom the award was forwarded for signature, or by electronic means.
- Unless the Parties agree otherwise, the date of the award shall be taken to be the date on which it is signed by the Arbitrator or, where there is more than one Arbitrator, by the last of them.
Time for Issuing a Final Award
1. The Arbitral Tribunal shall issue a final award within the timeframe agreed by the Parties. Failing agreement on a specific time limit or method of its determination, the award shall be issued within six months from the date of the first hearing of the Arbitration. The Arbitral Tribunal may extend the time for up to six additional months, unless the Parties agree to a longer extension.
2. The Arbitral Tribunal and either Party may, if no arbitral award is issued within the time period provided for in paragraph 1 of this article, request the Court to issue a decision extending the time period for issuing the arbitral award or terminating the arbitral proceedings, as necessary. The Arbitral Tribunal may extend such period under such conditions as it shall deem appropriate and its decision in this regard shall be final, unless otherwise agreed by the Parties.
3. Where the Court has issued a decision terminating the arbitral proceedings, either party may bring an action before the court originally competent to entertain it.
Notification of Arbitral Award
Subject to Article 47 of this Law, the Arbitral Tribunal shall notify the Parties of the award by communicating, to each party, an original or a copy of the arbitral award, signed by the arbitrators, within 15 days from the date of issue of the award.
Termination of Arbitral Proceedings
1. Arbitral proceedings are terminated by an award of the Arbitral Tribunal ending the whole dispute.
2. The Arbitral Tribunal shall also terminate arbitral proceedings in the following cases: (a) If the Parties agree on the termination of the Arbitration in accordance with this Law; (b) If the claimant withdraws its claim, unless the Arbitral Tribunal decides, on the application of the respondent, that the latter has a legitimate interest in continuing the proceedings until the dispute is settled; or (c) If the Arbitral Tribunal finds that the continuation of the proceedings has for any reason become unnecessary or impossible.
The UNCITRAL Model Law, which as previously noted has been adopted as the basis of many national arbitration laws, also provides in Article 31(3) that the award should stipulate the place of arbitration, with the effect that the award shall be deemed to have been made at that place. The recommendation therefore is to ensure that the following formal requirements are complied with:
• the award must be in writing;
• the place of arbitration must be stipulated;
• the date of the award must be specified; and
• the award must be signed.