The Reasoned Award in International Arbitration.
Geoffrey M.
Beresford Hartwell
please mail comments
See below for a suggested framework of a typical award
The Reasoned Award in International Arbitration.
The Award is the final product of a great deal of work both by the
arbitrators and by the parties and their legal teams.
Before the Award can be drafted, the arbitrators have to decide upon
what may be a number of important issues, the issues in the reference.
They will make their decisions with care, based upon what they have
learned from the parties and upon the application of the applicable law,
which may have been researched by the parties or by the arbitrators
themselves, but which will have been canvassed either at a hearing or in
memorials of some kind. Those decisions, together with the reasons for
them, are set out in the Award, which may be declaratory, (i.e. a
statement by the tribunal that such-and-such is so) but is more commonly
mandatory, that is to say a direction that one or the other party do
certain things, usually pay money in respect of the substantive issues
decided and usually also pay money in respect of the costs of the
arbitration process.
An International Arbitration, even one concerning relatively small
issues, will have been a considerable intellectual exercise, involving
many skills and much effort on the part of all concerned. It is likely to
have cost a considerable amount of money. The Award is not merely the
final product, it is the instrument by which the object of the
Arbitration, the proper decision of the Tribunal as between the parties,
is to be given effect. The importance of the Award is self-evident.
What can be inferred from the foregoing paragraphs is that the parties
are entitled to an Award of good quality and that they are entitled to an
Award which achieves its purpose. An Award which works.
In general, that does not require an Award to be made in some particular
form or style (although it does perhaps call for a good standard of
presentation). The matter came under review in the English jurisdiction
following the Arbitration Act of 1979. The English jurisdiction is given
to formality, but Lord Justice Donaldson, as he then was, gave useful
guidance to practising arbitrators when he said "No particular form
of award is required .... all that is necessary is that the arbitrators
should set out what, on their view of the evidence, did or did not happen,
and should explain succinctly why, in the light of what happened, they
have reached their decision and what that decision is.*1"
To repeat the close of my previous paragraph, an Award that works. An
Award which works must be capable of giving effect to the Arbitral
decision in the jurisdictions in which it may have to be enforced.
A general paper is no place to discuss either the idiosyncrasies of the
World's multifarious jurisdictions or the proposition that an Award may
deal with matters that are inherently unenforceable in some jurisdictions.
An Award which is intended, and declared, to be binding in honour only is
likely to arise rarely, and then only between sophisticated parties who
have agreed not to have recourse to exequatur.*2
This paper does not consider such topics, interesting though they may be.
I am concerned with more common situations, where the parties reuire an
award which is binding and enforceable at law.
To examine the enforceability of awards one needs to analyse the
requirements of relevant jurisdictions. In that context, it is at least
arguable that the New York Convention of 1958 is so widely espoused,
throughout the World, as to form a sound basis for the analysis of
Arbitral Awards, whether or not the country in which enforcement is sought
is a signatory to the Convention. (A copy of the English text of the
NYC is
available on this site.)
I do not mean that an Award which would satisfy the NYC criteria
necessarily will satisfy the authorities in any other country. The inverse
is probably correct, that an Award which does not meet the NYC criteria
will not satisfy the authorities of a non-signatory even if there is some
direct treaty. In the discussion which follows, I will set out the basic
necessities of a practical Award and develop the aspects which require
especial attention in the light of the NYC. An arbitral award is a
document having direct legal force for the parties to the reference. If,
in the event, a party does not comply with it of his or her own free will,
then it is not the subject of voluntary compliance, then it will have to
be enforced.
For that purpose, it must be clear what is the legal standing of the
document, who are the parties, what they are required to do, what is the
legal basis for that requirement and why that legal basis applies to the
matter. Let me break that down a little, to explain what is meant:
- what is the legal standing of the document: It is
trite to say that an arbitral award is made in the context of an
arbitration, but that is the source of its standing. The authority of
the award is the authority of the Arbitrator (or Arbitrators) and that
authority is the authority granted by the Parties by their arbitration
agreement and whatever appointment mechanism that agreement creates (or
adopts). The award should state that there was an arbitration agreement.
In most jurisdictions that would have to be an agreement in writing. To
satisfy the New York Convention it must be in writing. The award should
identify the agreement, whether it was a separate agreement or part of
some other agreement. If the agreement provided for conditions precedent
to arbitration, the award should say how they were met or if they were
waived by agreement of the parties. The fact of an arbitration hearing
and of any other material procedural steps should be recorded if they
remain relevant to the decision and its enforcement; one must bear in
mind the necessity of demonstrating that the tribunal was properly
constituted and that each party was given an adequate opportunity to
state his case. That probably means that decisions on material
objections should be recorded, if only to demonstrate that they were
correctly made.
- who are the parties: In some jurisdictions, for an
order of the Court to have effect against a corporate body may require
some formalities, such as the identification of that body by name,
registered address and company reference number. There is a danger, in
arbitral hearings, that the precise identity of one or other party will
become obscured, particularly when various subsidiary companies or
government agencies have been involved together. Now is not the time to
explore the doctrines of "piercing the corporate veil" and the
like, save to say that an award must be clear and certain as to the
parties upon whom it is to be binding. In the rare event that they are
not the parties to the original arbitration agreement, the award must
set out the legal basis of any substitution.
- what they are required to do: The section
presenting the Tribunal's final directions to the parties, the
dispositive section of the award, usually comes at its conclusion and is
best separated from the remainder by some clear form of words which
makes it clear that what follows is what is the binding decision of the
tribunal. In one sense, the dispositive section is the only true award,
the remainder being its justification. That is why some English awards
open the dispositive section with words such as ".. and I hereby
award and direct as follows ...". Each direction in the award must
be specific, unambiguous and capable of performance by the party against
whom it is directed. They should not be conditional save in exceptional
circumstances where the possibility of a conditional element in the
award has been canvassed and agreed by the parties. A tribunal should
avoid any direction, for example, that some thing be done "to the
satisfaction of the Tribunal (or of the Tribunal's expert)" for two
reasons: one that such an arrangement places the Tribunal (or the
expert) in an invidious position which is no longer one of making a
judgement between parties; the other that the subjective implication
makes the award itself impracticable of enforcement
- what is the legal basis for that requirement and
- why that legal basis applies to the matter: This
is the analysis of law and fact that founds the award. The best view as
to content is that it should be confined to such findings of fact as are
necessary, without detailed reasoning leading to those findings of fact.
That is because, in most jurisdictions, findings of fact are not
appealable and so the discussion which precedes such findings is of
little value to the Court. Similarly, such details are not helpful to
the Court from whom exequatur is sought. Nevertheless, where complex
technical issues are involved, the parties may be glad of a more
complete set of reasons. In some circumstances, that more complete set
of reasons may be provided as an annexe with a clear statement that they
do not form part of the award. Care has to be taken, however, that the
parties are content about this approach, because the mere declaration
that the additional reasons are separate may not mean, of itself, that
they are not admissible as evidence if some dispute arises as to the
award.
Form
Having said that no particular form is required, it may be as well to
offer first a frame work and then a checklist of features which may be
present in a typical award. There is little jurisprudential basis for
this, but it may be helpful. It is fairly natural for individuals to adopt
a visual style close to that of the Court practice with which they are
familiar. What follows is to a limited extent English, and may be more
formal than is always necessary. The so-called recitals, for example, are
only provided to make the award stand on its own and to facilitate
enforcement.
What follows is divided (like Gaul?) into three parts:
- The recitals - the creation of the Tribunal and the preparation of
the reference
- The reasons - the circumstances of the dispute, the choice of
evidence and the decisions of the Tribunal
- The disposition - the Tribunal's directions which give effect to the
award
Please bear in mind what the award is for. It has three purposes.
One is to tell the Parties what they must do. No details or explanations
are needed for that.
The second is to explain why the decision has been made. The Parties
will not need much more than a simple explanation, because each of them
knows the circumstances of the matter, probably only too well.
It is the third purpose, that of consideration by an enforcing body or a
Court of appeal, which demands, not formality, but sufficient information
to enable the award to stand on its own.
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There follows a non-exhaustive checklist which might also serve as a
framework for a practical award:
Front or Cover page - not always needed on
a brief award but a helpful guide to a number of incidental matters
| Citation |
in the matter of the Federal Arbitration Act of the
United States of America |
Directs the enforcing Court to the procedural basis of
the Arbitration |
| Case Title |
and in the matter of an Arbitration
[under the
UNCITRAL Arbitration Rules] between |
Identify that it is an arbitration - mention rules only
if rules were adopted. |
|
XYZ Co. Inc
of [221 Front Street,] Chicago,
Illinois (formerly Ucantbendit. Co. Inc.) and |
Short formal identification of the Parties.
Usually
appropriate to refer to former names, so that anyone reading the award
and the contract correspondence can see the continuity of identity.
|
|
Deuterium Hybrids Pty.
of [762 Witwatersrand Rd,]
Bloemfontein, South Africa |
Addresses enable enforcing Court to see immediately the
nationalities involved |
| Award Title |
[ARBITRATOR'S][FIRST/SECOND/THIRD....]
[INTERIM][FINAL][PROVISIONAL][PARTIAL] AWARD
[on a preliminary
application] [reserved as to costs] |
Describe the award as accurately and succinctly as
possible |
| Title Date |
19 September 1996 |
Care needs to be taken to be sure that the title date
is in line with the date of making the award. Some arbitrators do not
date the title at all. |
| Arbitrators name and profession |
Norman Biffing, an Architect |
Not always needed on a title page but helpful to the
enforcing Court if it has to appreciate the background of the matter. |
| Locus |
New York |
Asserts the locus of the forum. Should correspond with
other references to the locus and may not be ncessary in the title at
all |
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Main text The first page of the award will normally
commence with a repetition of some, but not all of the information
presented on the Cover Sheet. Generally, the other information will be
seen in the so-called recitals.
| Heading: |
|
|
| Citation |
in the matter of the Federal Arbitration Act of the USA |
See notes for title page above. |
| Case Title |
and in the matter of an Arbitration
[under the
UNCITRAL Arbitration Rules] between
XYZ Co. Inc
of [221 Front
Street,] Chicago, Illinois
(formerly Ucantbendit. Co. Inc.) and
Deuterium
Hybrids Pty.
of [762 Witwatersrand Rd,]
Bloemfontein, South
Africa |
See notes for title page above. |
| Award Title |
[ARBITRATOR'S][FIRST/SECOND/THIRD....]
[INTERIM][FINAL][PROVISIONAL][PARTIAL]
AWARD
[on a preliminary application] [reserved as to costs] |
See notes for title page above, but it would be
permissible to have a longer verision of the title if appropriate. |
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Note that it is not essential to commence the
text with recitals in the suggested, or indeed any form, or at all.
Narrative reasoned awards are very common and may well suffice. In most
jurisdictions there is no set format for an award. These suggestions are
advanced as one way of ensuring that an enforcing court will have
sufficient information for its decision.
| Recitals - First Part: |
|
The recitals normally would be so set out as to make a
continuous flowing text. These notes are set out to demonstrate the
essential features. |
| Award Status |
This is the [first/ second/ third....]
[Interim]
[final] [provisional] [partial] award |
Identify the nature of the award. |
| Award Locus*3 |
made in New York |
The place of the award should be included for the
avoidance of doubt, but some leave it until the final signature. |
| Arbitrator |
by me, Norman Biffing, |
In the case of a Tribunal of, say, three arbitrators,
the names and occupations of all three should be given. |
| Occupation |
an Architect,
as Arbitrator in a reference between
|
Be precise as to the Arbitrator's occupation,
particularly if it is in some way related to the circumstances of the
arbitration and a fortiori if a specific qualification was stipulated by
the Parties in their agreement. Whether or not the place of business of
the arbitrator(s) should be given is a matter of taste. |
| Claimant |
XYZ Co. Inc,
(formerly Ucantbendit Co. Inc.) |
Identify the Parties fully. If (and only if) relevant,
refer also to Parent company. |
Status*4
(i.e
Company, Firm, etc if not a natural person) |
a company |
In the case of companies whose domicile provides for
registration with a registered number, include the number for the
avoidance of doubt. |
| Address |
whose registered address is
221 Front Street,
Chicago, Illinois,
[and who also trade at 67 Embargo Street,
Johannesburg, South Africa] |
The head office or registered office. Include a local
trading base only if directly relevant and referred to in the
arbitration. |
Short Name
(for the purposes of the reasoned
award) |
to whom I shall refer as XYZ, and |
Short names are to be preferred to the use of generic
terms such as "Claimant" or "Plaintiff" etc. for two
reasons. One is the avoidance of confusion, the other that the generic
words then remain available for any legal discussion within the text. |
| Respondent |
Deuterium Hybrids Pty. |
As for Claimant. |
| Status |
a company |
|
| Address |
whose registered address is
762 Witwatersrand Rd.,
Bloemfontein, South Africa, |
|
| Short Name |
to whom I shall refer as Hybrids |
|
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| Recitals - Second Part: |
|
|
| Contract or other Arbitration provision.*5 |
XYZ and Hybrids entered into an agreement, dated 18
January 1991, whereby XYZ were to build a factory in Jamaica for
Hybrids. That agreement contained an Arbitration Clause in these terms:
[actual words of the clause]. |
Cite the Arbitration agreement or clause and place it
in context by reference to the subject matter.
It may be trite to
point out that the Arbitrator can only set out, in his recitals, matters
of which he has direct knowledge or which have been proved to him. |
| Prerequisites of Arbitration |
Differences having arisen between XYZ and Hybrids, |
The purpose of this and the following items is to show
that the Arbitrator's appointment was in accordance with the Arbitration
Agreement.
For jurisdictions where an agreement to arbitrate must
follow a compromise upon an existing dispute, it may be desirable to set
out the sequence of events leading to the appointment is some detail.
For disputes which require some form of notice (e.g. Engineer's
decisions in some forms of construction contract), one should show that
the notice was either given or waived. |
| Appointer |
the President of the Architectural Association |
|
| Appointment |
appointed me as sole Arbitrator on 25 May 1992, in
response to an application by XYZ . |
|
| Acceptance and notification |
I accepted that appointment and wrote to XYZ and also
to Hybrids on 15 June 1992 advising them that I had done so. |
|
Locus and
Arbitration rules if any |
In accordance with the Arbitration Clause in the
agreement between the parties, this Arbitration has been conducted in
New York under the UNCITRAL Arbitration Rules 19XX. Some evidence and
argument was received in other locations. |
|
Procedural meetings
Claim, Counterclaim and
Defence
submissions |
At a procedural meeting in London on [date] XYZ were
represented by Mr. Artemus Jones of Messrs. Jones, Nojes and Sejon,
Attorneys of New York and Hybrid were represented by Miss Graciella
Martingale of English Counsel, instructed by Messrs. Costegon Frice,
Solicitors of Capetown. Following that meeting, XYZ supplied their
Statement of Claim [date if you wish] to which Hybrid responded on
[date]. |
It is probably unnecessary to set out all the details
of procedural meetings unless something exceptional has arisen.
In
those jurisdictions where the Arbitrator(s) are not accustomed to
dealing with the assessment of costs, some detail will be needed by the
assessment authorities, but that is not the general practice in
international matters.
Note particularly that any determination of
jurisdiction ought to be recorded. If that was the subject of an interim
award or merely the subject of a letter or some other intimation, to
record it will suffice.
The courtesy of mentioning names of Counsel
- and those who instruct and assist them, if appropriate, serves an
additional purpose, namely to note the level of representation as a
reminder when costs are considered.
Note also any orders made or
directions given, but only if they have a bearing on the decisions in
the award or special relevance as to costs. |
Broad statement of the dispute
(Terms of reference
if used) |
XYZ sought [whatever they sought.]. Hybrid denied
[whatever] and sought [whatever Hybrid sought]. |
This is a simplified statement of the salient points
claimed or counter claimed.
There is some debate as to whether
every contention of each Party should be set out in detail in an award.
Current thinking is that it need not.
In an ICC Arbitration or any
other where terms of reference were prepared, it may be as well to set
out those terms of reference. |
Documents
Hearings
Closure of reference |
I have considered detailed memorials provided on [date]
by XYZ and on [date] by Hybrid and I heard evidence and argument
presented by Mr. Artemus Jones and by Miss Graciella Martingale in
Kingston, Jamaica on [date and date] in Singapore on [date] and in
Acapulco on [date].
Final submissions were made orally in Lausanne,
Switzerland on [date and date] and I closed the reference on [date.] |
Again, the recitals need not give excessive detail but
this paragraph will highlight the essentials of the procedure.
It
is particularly helpful to note the date of closure of the reference,
because that may have relevance if some late evidence or argument is
offered. |
| Announcement of award |
AND I now make and publish this,
my AWARD, with
reasons as follows: |
Perhaps not necessary an a little formal, but serves to
bring the recitals to an end and to enable the Arbitrator to deal with
the reasons for the award. |
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| Reasons: |
|
| Preamble |
An outline of the background to the dispute, relying
generally upon the common ground between the Parties, but limited to
what is necessary to explain the dispute. To detail all the common
ground is probably otiose, as i) if a matter is not in dispute it is not
a matter for the arbitrator ii) an arbitrator may have the matter right,
but be wrong in describing it as common ground. |
| Review of contentions |
An outline of the contentions of the Parties. It is
partly a matter of style to decide whether to deal with the Parties'
cases issue by issue or to consider each Party's case as a whole. Where
the issues are set out in schedules, as is done in some complex cases,
it is as well to use that framework for the discussion of reasons. |
| Evidence |
The best practice in the present day is probably not
to analyze and discuss the evidence in detail but to indicate, where a
choice has to be made, what that choice has been.
Few jurisdictions
provide for the Court to "second-guess" an arbitrator on
matters of fact, so detailed thinking on matters of fact is not useful
to the Court, although it may be of value to the parties, particularly
in a complex technical arbitration.
Gratuitous insults to witnesses
whose evidence is not preferred are unhelpful and may well give grounds
for an accusation of bias. Most witnesses believe what they say, even
when they are, in fact, wrong. The mental process of "rationalisation"
may well lead to a witness being thouroughly convinced on his own view
of event, although there may be no objective basis for his views. |
| Decisions of fact |
The basis of the award.
Record a decision in
respect of each factual issue in clear and unequivocal terms.
Traditional
English practice is to use the words "I find" when stating
decisions of fact. |
| Application and decisions of law |
The award need not discuss the law in the detail
normally adopted, for example, in a common-law judgement or an academic
analysis.
What is necessary is the reason for each decision of law
in sufficient detail for the Court, usually the Court of the place where
the award was made, to consider any application for suspension or
setting aside.
Traditional English practice is to use the words "I
hold" when stating decisions of Law. That may be archaic, but some
non-lawyer expert arbitrators adopt the practice to remind themselves of
the distinction. |
| Advice |
If the arbitrator has sought advice, whether legal or
other, either with the support of the Parties or otherwise, he should
say so.
He probably need not, however, record the scrutiny of, for
example, the ICC Court of Arbitration, because that scrutiny, though
technically explicable as advice to the Arbitrator, is a known part of
the procedure.
Bear in mind that advice is only advice - the
arbitral tribunal must make its own decisions; delegatus non potest
delegare. |
| Costs |
If the Award is to deal with costs at this stage, any
reasons for the award of costs should be set out to show that the matter
has been dealt with, and any discretion exercised, judicially.
Regrettable
though it may be, in many modern references, the costs may approach or
exceed the substantive amounts awarded.
It follows that this is a
subject to be approached with care and precision. |
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| Dispositions: |
|
In this section are recorded the decisions of the
tribunal and the directions for disposing of the reference. |
| Announcement |
AND I now AWARD [and DECLARE] that: |
Words like these are not essential but make a
convenient opening to a dispositive section. |
| Declaration |
1. XYZ Co. Inc. are entitled to an extension of time
for the completion of the works to 13 January 1992 |
If there is no declaration then this group can be
skipped; declarations are not common.
Sometimes the reasoned
section of the award will end with a summary of fndings leading directly
to the substantive dispositions of the award. |
|
2. XYZ Co. Inc. are entitled to payment in respect of
additional works as set out in the reasons for this Award |
|
| Directions |
AND I DIRECT that |
|
| Disposition - Substantive |
1. Deuterium Hybrids Pty Pay to XYZ Co. Inc, within
fourteen days of this my award, the sum of $140.000 in respect of the
said extension of time |
Use the full name.
Identify the issue in respect
of which the payment is made or say that the payment is in respect of
all the issues
Putting a term to the direction facilitates later
enforcement. |
|
2. Deuterium Hybrids Pty Pay to XYZ Co. Inc, within
fourteen days of this my award, the sum of $50.000 in respect of the
alterations to the building |
|
| Disposition - Interest |
3. Deuterium Hybrids Pty Pay to XYZ Co. Inc, within
fourteen days of this my award, the sum of $55.000 in respect of
Interest on the amounts awarded in 1 and 2 above to the date of this my
award, to bear interest at the rate of 5% per annum thereafter. |
Interest is a peculiarly difficult topic and attention
must be paid to the practice of the place of the Arbitration and the
place where the award is made.
That is because some jurisdictions
treat interest as a procedural matter and some as a substantive matter.
For some jurisdictions, the notion of interest is anathema and an
award may be contrary to public policy as endorsing usury.
Now is
not the time to do more than sound a warning. |
| Arbitrator's costs |
4. [subject to such further information as I may be
given within fourteen days of this, my Award,] Deuterium Hybrids Pty
pay, within fourteen days of this my award, my fees and expenses in this
reference to the date of this my award, which I assess and settle in the
sum of $17,000 [on which VAT is payable at the rate of 17«%] |
The bracketed words are but one way in which to keep
open the possibility that the decision on costs will have to take
account of offers not known to the Arbitrator. There are others.
Quite
common is for the Award to be reserved as to costs and so noted in the
title. This topic is closely tied to the jurisdiction in which the
Arbitration takes place and to the culture of the Arbitrators.
The
so-called "sealed offer" practice of certain trades, notably
in England, calls for a degree of discipline on the part of the
arbitrator and cannot be checked by the parties.
It is unlikely to
be used in International matters without safeguards.
Note also the
question of revenue tax, which may require a little care. |
| Party's costs |
5. [subject to such further information as I may be
given within fourteen days of this, my Award,] Deuterium Hybrids Pty Pay
to XYZ Co. Inc, within fourteen days of this my award, two-thirds of
their reasonable costs in the reference, reasonably incurred, the same
to be determined by me on application if not agreed and I reserve the
reference for that purpose. |
|
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| Closure: |
|
|
Signature
Locus
Date
Name and writing |
This Award is made and signed in New York
this
25th day of December 1993
by me Norman Biffing, as Arbitrator
[Written
signature] |
Check against details elsewhere in award.
Signature
should be in handwriting, not in a stamp or a computer printed signature
image.
The use of an ink different in colour from the text helps in
identifying an original from a copy (but is insufficient to eliminate
deliberate fraud). |
| Witness |
in the presence of Frederick C. Bludgeons,
Attorney
Bludgeons, Bludgeons and Alberich
756, Fifth Avenue New York
|
Witnesses are necessary in many jurisdictions.
It
is probably desirable to have the award witnessed by an attorney, as
that can simplify matters in some jurisdictions where there is a
question about the competence of witnesses.
There are jurisdictions
in which an award may require to be notarised by a notary public.
When
the Award is made in the jurisdiction of certain States, such as those
with planned economies, a witness in an official position, who is able
to affix an official stamp, may be preferred. |
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Footnotes:
- Bremer Handelsgesellschaft mbH v. Westzucker
GmbH (No. 2); Westzucker GmbH v. Bunge GmbH (1981) Lloyd's Rep. 130
CA.*
- The Reader should take care to distinguish between
i) an agreement that, for legal reasons or otherwise, cannot be legally
binding and is said to be binding in honour only and ii) an agreement
that is binding but to be interpreted honourably. There is some debate
as to whether the first type - for example a gambling agreement in
England and in other jurisdictions which do not enforce gambling debts -
is arbitrable at all. As the agreement could not be enforced in such a
jurisdiction, public policy might be a ground to deny recognition and
execution. The second type, however, an agreement pointing to the use of
extra-legal standards in its interpretation, has been accepted, for
example, in England in Home Insurance Co., and St. Paul Fire and
Marine Insurance Co. -v- Administration Asiguricor De Stat [1983] 2
Lloyd's Rep. 647 (Q.B.). That was a reinsurance contract with an
arbitration clause in the following terms "Arbitration. .... The
award of the Arbitrators or the Umpire...shall be final and binding upon
all parties without appeal. This Treaty shall be interpreted as an
honourable engagement rather than as a legal obligation and the award
shall be made with a view of effecting the general purpose of this
treaty rather than in accordance with a literal interpretation of its
language ...". That Court did not accept the defendant's arguments
that the language bound the Parties in honour only and not in law. The
Court did decide that the Arbitrators were relieved from strict rules of
interpretation. If it were not so, the whole provision would have become
ineffective, defeating the rule pacta sunt servanda, a rule of
fundamental importance in the arbitral context. (But see the procedural
laws of national jurisdictions and institutional arbitration rules in
respect of decisions ex aequo et bono and the role of amiable
compositeur.)*
- Because there may distinctions between the Locus
of the award itself, the seat of the arbitration and the place in which
some aspects of the reference occurred, each should be identified with
some care. The NYC is quite clear - it applies to arbitral awards made
in the territory of a State other than the State in which recognition
and enforcement are sought.*
- The NYC deals with awards arising out of
differences between persons, whether physical or legal.*
- Where the Arbitration arises from the compromise
of a tort or from some other obligation, not a contract, between the
Parties, that should be set out, together with the fact of an agreement
to arbitration and sufficient of the terms of that agreement. If there
is a complicated agreement, then it usefully may be appended as a
schedule.*
- The NYC applies to Arbitral awards "...arising
out of disputes between persons, whether physical or legal"*
- The NYC differentiates between the territory of
the State where the award was made, the country where the award is made,
the country where the arbitration took place and the country in which or
under the law of which, the award was made. That distinction, and how it
applies in multiple jurisdictions, such as the United States, Canada or
the Untied Kingdom, is an interesting subject for academic debate. for
the present purpose, it suffices to point out that the existence of a
possible distinction makes it important for the award to be clear as to
what was done where.*
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