Presentation Transcript

1. DRAFTING ARBITRATION AWARDS

   CONFERENCE ON INTERNATIONAL ARBITRATION: PALESTINE 10 December 2013 V.V.Veeder
2. OBJECTIVES Finality and Enforceability Formalities: Mandatory Rules, Laws and NYC Decision: Operative Part (the “End”) Reasons for Decision (the “Middle”) Arbitral Procedure (the “Beginning’) The Audience: The Losing Party(ies); and National Courts at the seat and abroad Hence >> (1) The Beginning; (2) The Middle and (3) The End of the Award.
3. ICC CHECK-LIST 2011 Only a “Check-List” for ICC Arbitrations! Other check-lists for other Arbitration Rules and Laws (UNCITRAL, SCC, LCIA, SIAC and arbitral seats) Only a Check-List for (1) The Beginning and (3) The End – not (2) The Middle; Overall Rules of Reason: Common-Sense; and Ask the Parties beforehand; Rules of Unreason: Place of Signature; Missing Signatures; and absurd Obscurities;
4. 1: GENERAL FORM
5. 2: THE ARBITRAL PARTICIPANTS Identification of the parties, their representatives and the arbitrator(s) A.Parties’ complete addresses and correct names. Clarify the identity of any parties to the arbitration that are different f rom the parties to the contract(s). B.Addresses of parties’ representatives. [Clarify what addresses] C.Arbitrators’ addresses. [Clarify what addresses: public and private]
6. 3: JURISDICTION Arbitration and choice-of-law agreements A.Quotation of entire arbitration agreement(s). B.Precise indication of the parties to and/or signatories of the arbitration agreement(s). C.Quotation of relevant choice-of-law clause. [law of the seat (“lex arbitri”); mandatory laws; implied or inferred choice of laws: ‘voie directe’ under Article 23(1) of the ICC Rules] D.Record of any agreed amendments to the arbitration agreement(s). [oral/written agreements; agreed in pleadings, terms of reference and transcript]
7. 4A: ARBITRAL PROCEDURE A.Summary of all procedural steps to date (e.g. Request for Arbitration, Answer, Terms of Reference, Parties’ submissions, hearing). B.Indication of the ICC Court’s decisions regarding (if applicable): i. Article 6(2); ii. Place [seat] of arbitration; iii. Number of arbitrators. C.Description of the constitution of the Arbitral Tribunal (including confirmation orappointment decisions). D.If applicable, reference to the parties’ agreement on an alternative method of nominating or appointing the chairman of the Arbitral Tribunal.
8. 4B: ARBITRAL PROCEDURE E.Date of closing of the proceedings under Article 22(1) (for every Award). F.Indication of the latest time extension for rendering the Final Award granted by the[ICC] Court under Article 24 and date on which it was granted. It is recommended that all extensions granted by the [ICC] Court, and the date(s) on which they were granted, be specified. This is a requirement if Paris is the place [seat] of arbitration.
9. 4C: ARBITRAL PROCEDURE G.If there has been a prior Award, no need to repeat the procedural history set outin the prior Award, but simply:   i. restate the information mentioned in sections 2 and 3 above; ii. refer to the previous Award, the date on which it was notified to the partiesby the Secretariat, the issues it decided, and the fact that its procedural background is incorporated by reference into the present Award; iii. describe the procedure subsequent to that set out in the previous Award.
10. 5: JURISDICTIONAL DECISIONS Jurisdiction If the ICC Court has made an Article 6(2) decision or jurisdiction is otherwise at issue, the award should ordinarily include the Arbitral Tribunal’s decision on jurisdiction.
11. 6: LEGAL AND ARBITRATION COSTS A. Costs of arbitration fixed by the ICC Court and each party’s legal costs dealt with separately in both the body of the Award and in the dispositive section. B.Reference to Article 31 and the discretion to allocate costs (i.e. costs of arbitrationfixed by the [ICC] Court and parties’ legal costs) and fix the amount to be borne by each party.
12. 7A: THE OPERATIVE PART A.Award contains a dispositive section [“dispositif” = operative part] mentioning all orders (including the decision on jurisdiction, if applicable) and nothing more than the orders. B.Award deals with all of the issues and parties’ claims (which should be stated clearlyand precisely somewhere in the Award and compared to the Terms of Reference), including the parties’ most recent requests for relief, and decides nothing more than those issues and claims (state clearly if certain claims are reserved for one or more future Awards). C. State in the dispositive section of Final Awards that all other requests and claims are rejected (unless the nature of the Award makes this unnecessary).
13. 7B: THE OPERATIVE PART D.After the dispositive section, add the date on which the Award is made and the signatures [of the Tribunal] in the following manner: Place of arbitration: City (Country) Date: __/__/____ [date must be later than the Court session at which the Award was approved and not earlier than when the last arbitrator signs] Signature(s):_________________________
14. 8: THE MIDDLE PART* List of Issues (from Terms of Reference or “Agreed List”); List and citations of Relevant Legal Texts (Contract; Laws etc); Findings of Relevant Facts: Agreed, Undisputed and Disputed >> Chronology; Application of law, rules of law, contract and ‘trade usages” to the facts found – decision issue by issue; Summary of decisions on each substantive claim, counterclaim, defence and defence to counterclaim; Ancillary Relief (interest, costs etc).
15. 9: DELIBERATIONS AND DISSENTS Best to omit references to dates and forms of deliberations – usually; Substance of deliberations always to be kept ‘secret’; Procedure for Dissenting Opinions; The exercise of the right to dissent; - signature - dissenting opinion - in courteous and moderate language Arbitral Dissents still rare: but cultural issues …