Arbitration Award: Structure and Publishing (Chapter 8)

• Chapter 8 focuses on the structure, form, and publishing of an arbitrator's award.
• The arbitrator should keep in mind the potential readers which are the parties and their advisors, and possibly a judge.
• There isn't a set format for an arbitrator's award - it should comply with requirements, be comfortable for the arbitrator, and appropriate for the situation.
• The award should be structured so that it resolves the issues and can be enforced.
• A well-written award explains reasoning and has a clear structure that records procedures, demonstrates fairness, and lowers the risk of challenges.
• "Publishing" refers to sending the final award to the institute or parties, essentially "delivering" commercial arbitration awards kept are generally confidential.

Learning Objectives:

• Describe the essential content and structure of an arbitration award.
• Describe the detailed form that an arbitration award may take.
• Describe what is needed for the effective publication of an award.
• Explain potential consequences and actions that may be required after publication.

Award Structure Basics

• Use clear, comprehensible, and unambiguous language.
• The vocabulary should be in plain English.
• Only use legal terms if necessary and explain them if parties may not understand.

Headings and Contents

• Headings help divide the award into functional parts.
• A list of contents can improve the logic, flow, and readability of a lengthy or complex award.

Reasons

• The arbitrator provides reasons for decisions on disputed facts and application of law.
• The arbitrator should show their reasons throughout the award.

Checking

• The arbitrator should re-read their award to ensure every issue is addressed and reasons are clear.
• The final check should ensure the wording won't be misinterpreted.

Style and Content

• Certain information should always be included in an award like an introduction, information on jurisdiction, and arbitral process details.

Introduction

• Details of the parties and representatives
• The contract
• The arbitration agreement
• Relevant arbitration rules
• The designated seat of arbitration
• The date of the arbitration notice
• Dates and nomination/appointment details
• Matters that are referred and redress being sought

Jurisdiction

• Details of any challenges to jurisdiction
• Conclusion of arbitrator on subject

Arbitration Process

• Dates of submission
• Dates, attendees of meeting
• Problems of procedure
• Relevant matters

Body or General Narrative

• Sufficient background to identify the issues for decision is required.
• It is essential to include enough information as submissions aren't part of the final award.
• A summary of party arguments and evidence should enable understanding of the decision.
• Commentary should show how the arbitrator came to their decision.
• Writing should be in plain language and follow logical sequence.
• Identify issues to decide.

Operative Directions

• The arbitrator's decision should be recorded and reiterated
• Requirements need to be accompanied by timescale
• Totals (sums) of award
• Interest details if asked and applicable
• How arbitrator costs are allocated
• Party cost considerations
• The award must be made, signed, and dated at the designated seat, adhering to jurisdiction requirements.

Form of the Award

• The goal of an award is to resolve disputed issues between parties enforceably, adhering to submissions and dealing with all referenced matter
• The award must not reference outside matters, be unambiguous, final, and consistent.
• Unless the parties agree otherwise, the document should include reasons, be capable of being performed, and be signed and dated.
• An award should consist of beginning (heading and recitals), middle (narrative, issues, reasons, and conclusions), and end (action items).

The Beginning: The Heading

• A typical example of arbitration includes provisions of relevant legislation.
• The heading typically includes names of parties and notes changes.

Introduction

• The arbitrator explains how they have jurisdiction and how they have acquired information.

Following Chronological Order:

• Define parties and respective roles.
• Refer to the originating contract with dates.
• Describe the nature of the contract.
• Verbatim quote contract arbitration agreements.
• The origin of dispute must be stated
• Claimant issued an arbitration notice.
• Designate the arbitral institution with rules/bylaws.
• Where laws will apply
• By contract, agreement, or nominating body
• Mention directions
• Mention jurisdictional issues
• Changes to procedure timetable

The Middle

• The background facts detailing the dispute.
• Summarize the dispute events in chronological order.
• Readers should understand the disagreement among parties involved.
• Describe the decision sought out by each party.
• Arbitration defines these matters.

The Issues

• The arbitrator must come to a decision, and correctly identify issues.
• It is important to know the difference between what is being claimed.
• The determination of each issues will determine other issues.

Reasons and Findings

• Common law judges can make new judgements or precedent
• Limited to certain disputes

Interest

• The arbitrator will usually be asked to give interest
• There should be a clear explanation on how it's being awarded
• It must be satisfied with interest as well
• Legislation gives any interest rate
• Award interest
• The arbitrator should ward interest from the date of the decision should it be claimed

Financial Summary

• There will be heads of monetary claim
• There needs to be a single payment to be awarded and payments against the other

Fees and Costs

• Two schools of thought are that either unsuccessful pays successes, or the event should follow
• Agreements are made with preliminary meetings
• It can be difficult who is successful, that an amount of proportion of costs

Costs

• Special circumstances will have arbitrators aware costs that are reasonably incurred.
• Where arbitrator is for award concerns, should follow ways

Ways the arbitrator includes declarations concerning liability for the costs:

• Party A will pay party B costs
• Party A will pay party B indemnity
• It will be straight forward.

The End:

• The operative and disposable part.
• Specify all the actions need
• If there's no material, it will be unforceable
• The necessary matters
• The decisions that be reiterated

Fees and Expenses

• An arbitrator is not a party
• He can't award the parties in arbitration
• He must not enforce part and not pay because he's one
• An award will be unable to withstand scrutiny

Payments

• Payment made can be made forthwith
• The second is by setting a set period of the award
• All jurisdiction should be paid
• There should be tax and reference
• Any provision of sales tax should be referred that all should be included with tax invoice.
• You have to deal with signature
• You have to be aware that the award is consistent with what you have to write/sign.

Publishing the Award

• What is required for the payment
• All parts of evidence are recorded

After publication

• The arbitrator may have continuous interest
• He may have made errors
• The losing party does not comply with the sum
• He may seek to enforce this in court

Publication

• The arbitrator has to deliver parties award and parties rules
• Certified parties can be provided to Registrar

Errors

• The arbitrator make mistake after the award.
• Arbitrator must fix the mistake and they have to have a correction and ask for help.
• A substantive error cannot be fixed but most of the parts has to be followed.

Enforcement

• A work book can be followed and arbitrator can be enforced.

Payments

• An arbitrator has right to be charged and paid.
• There should be a list to what will be reimbursed