Module 3 Chapter 8: Arbitrator Award: Style and Structure

Arbitrator Award Style

• Arbitrators should consider potential readers such as parties, advisors, and judges when deciding on the style of an award.
• Awards should comply with Chapter Six requirements, but arbitrators can choose a suitable style, format, sequence, and language.
• Awards must resolve issues definitively and be enforceable.
• Awards explain the decision-making process to the parties involved.
• A well-structured award guides the reasoning process.
• Clear structures fairly handle arbitrations and are less likely to be challenged on procedural grounds.
• "Publishing" means the arbitrator sends the final award to the institute and/or parties involved.
• Commercial arbitration awards are usually confidential and rarely made public in the traditional sense.

Learning Objectives

• One will be able to describe the essential content and structure of an arbitration award
• One will be able to describe the detailed form that an arbitration award may take
• One will be able to describe what is needed for the effective publication of an award
• One will be able to identify and explain potential consequences and actions that may be required following publication

Award Structure Basics

• Use plain English that is easy to understand and unambiguous.
• Avoid legal terms unless necessary.
• If legal terms are used, ensure they are understood and explained.

Headings and Contents

• Headings are useful for readers and arbitrators to split the award into functional parts.
• A list of contents is helpful for longer, complex awards to maintain logic and flow.

Reasons

• Arbitrator explains their decisions on disputed facts.
• Arbitrator explains reasoning throughout the award to ensure confidence in judgment.

Checking

• Arbitrators should re-read the award before finalizing it.
• Arbitrators should check that all issues are addressed and the reasons are clear.
• Arbitrators should be wary of only seeing what they think it says.

Style and Content

• Include specific information in the award
• Style and presentation of an award are up to the individual arbitrator

Introduction

• Include the details of parties and representatives.
• Include the contract information.
• Include the arbitration agreement.
• Mention the arbitration rules that apply.
• Mention the seat of arbitration
• Note the date of notice of arbitration.
• Note the date and details of the nomination/appointment of the arbitrator
• Include matters referred and redress sought.

Jurisdiction

• Include any challenges to jurisdiction.
• Include the arbitrator's conclusion (if appropriate).

The Arbitration Process

• List dates of relevant submissions.
• List the date of any meetings and attendees.
• Provide details of any particular procedural problems.
• Note other interlocutory matters.

Body of Award or General Narrative

• Include background narrative with sufficient detail to identify the issues.
• Submissions are not part of the final award.
• Include enough information for any potential enforcing authority and the parties.
• Summarize evidence and arguments to explain how the arbitrator reached their decision.
• Commentary indicates parties understand how the arbitrator reached their decision.
• Write in an orderly, logical sequence using plain language.
• Clearly state the issues to be decided.

The Award - Operative Directions

• Record and reiterate the arbitrator's decisions on the various issues under a separate heading.
• Ensure any requirements for either party to act include an appropriate timeframe.
• Clearly specify sums of money awarded.
• Address interest if requested and the arbitrator has jurisdiction.
• Allocate Arbitrator costs based on procedure or rules.
• Address the parties' own costs only if requested and the arbitrator has jurisdiction.
• Ensure the award is signed, dated, and "made" at the seat.
• Jurisdiction dictates requirements
• Chapter 5 for International Arbitration
• Chapter 4 for Domestic Arbitration

Form of the Award

• Awards should resolve disputes between parties referred to the arbitrator in an enforceable manner
• The award complies with submissions
• Award deals with all matters referred
• Award does not deal with matters not referred
• Award is final with respect to all matters dealt with
• Award is certain and unambiguous
• Award is consistent within itself
• Award contains reasons, barring other specifications set forth by the parties
• Award is capable of being performed
• Award is signed and dated

Award structure

• Awards are separated into three parts
• The beginning which details the heading and the recitals
• The middle which houses the narrative, the issues and the reasons and conclusions
• The end which contains the operative directions and/ or the declarations and the attestation (signature).

The Beginning: The Heading

• Headings contain important details.
• Identify the names of the parties correctly.
• Note company name changes after a takeover or amalgamation.
• For partnerships, include the trade name under which business is carried out.
• When a name changes, show the former name and some explanation in the recitals.
• Example of appropriate heading format:
  • IN THE MATTER OF AN ARBITRATION UNDER THE INTERNATIONAL ARBITRATION ACT(SINGAPORE) CHAPTER 143A AND
  • IN THE MATTER OF AN ARBITRATION UNDER THE ICC RULES OF ARBITRATION
  • BETWEEN BIGCO (UK) LTD (Claimant)AND SMALLCO (EASTERN) Pte LTD (Respondent)

The Introduction

• The introduction explains how the arbitrator has jurisdiction and how they acquired information to base the award on
• Order these in a chronological manner: - Define the parties and their respective roles. - Refer to the contract between the parties and when it was made. - Say what the contract was for. - State that the contract included an arbitration agreement and quote the arbitration agreement verbatim and fully. - State that a dispute has arisen and give very brief details. - State that the claimant issued a notice of arbitration on [date]. Include the information regarding a representative - State the arbitral institution and its rules (where applicable); - State the seat or which arbitration laws will apply; - State how you were appointed as arbitrator (i.e.. by this being written into the contract, by agreement of theparties or by an arbitrator nominating body). - State that you accepted the appointment in writing and on what date. - Refer to any directions given. - Refer to any jurisdictional issues raised. - Refer to any changes to the procedural timetable, including agreed extensions of time for making the submissions or decision. - Record other matters such as if an inspection of the subject matter of dispute was carried out, when and where, and who was present at the inspection. - Record if a hearing was held, stating where and on what date or dates. - State when, how and to whom the notice of hearing was given. - State who represented each party at the hearing. - State which witnesses made statements, and which were called for cross-examination. - State if any experts made reports and were called for cross-examination, their respective disciplines and on which party’s behalf they appeared. - Describe and deal with any other matters which might have a bearing on jurisdiction or procedure.

The Middle: The Narrative

• Describe the background facts leading to the dispute and its origin, also known as the 'Background'.
• Summarize events in chronological order to explain the dispute.
• Readers need to understand what parties are in disagreement about.

The Dispute

• Explain what each party wants the arbitrator to decide using references to remedies requested in written submissions.
• The notice of arbitration (or any subsequent pleadings/statement of case) defines the matters referred to arbitration.
• Sample Arbitration Claimant Relief
  • An order for payment of $55,000 or a sum deemed just by the arbitrator.
  • A decision and declaration about the $55,000 interim payment certificate.
  • The $55,000 together needs to be released from the responding party
  • An order that the responding party pay interest.
  • An order that the responding party shall pay the arbitrator’s fees and expenses in this arbitration.
  • Further or other relief

The Issues

• Identification of issues the arbitrator must decide, which is one of the most important tasks an arbitrator has to carry out
• Distinguish between what is being claimed and the issues using an example of a £50,000 damages request where it is alleged that the responding party impedes performance of the contract and submits that the notice was given too late and disputes the amount claimed in any event
• Four issues arising for determination
  • Construction of contract and whether notice is a condition precedent to making a claim?
  • Whether the referring party was able to provide notice within a reasonable time?
  • Whether the referred party will show that a damage or loss of has occurred
  • Cause of Damage a direct and foreseeable outcome
    • Excusable estopple for late notice?
    • Mitigating steps put into place for a loss?

Reasons and findings

• Judges are empowered by the state to test the law through precedent, which is not a right afforded to an arbitrator.
• Lord Bingham points out helpful insights as to practical impacts
  • Analyses should be summarized
  • Summaries should be brief and intelligible.
  • Summarizing the arguments effectively conveys the important
  • Reasons should be set out for why the evidence of a witness was disregarded It is not necessary – and probably not even desirable – that an arbitrator should attempt, as a judge does, to summarise the evidence given by the parties on each disputed factual issue. - Save perhaps where the arbitrator has been asked before making his award to set out in his reasons the evidence upon which a particular finding of fact is based, should the arbitrator set out all the relevant evidence on the point.

Where an award differs from a judgment is in the fact that the arbitrators will not be expected to analyse the law and the authorities. It will be quite sufficient that they should explain how they reach their conclusion, e.g., 'we regarded the conduct of the buyers, as we have described it, as constituting a repudiation of their obligations under the contract and the subsequent conduct putting an end to the contract.'”

Interest

• Arbitrator awards simple or compound interest where applicable, depending on the complexity of the scenario
• Interest must always be claimed and regarded in a professional and precise calculation
• The Chartered Institute of Arbitrators Guideline on the Award of Interest is a useful guide to awarding interest.

Financial summary

• Include the reference from the Module 1 Workbooks: International, Chapter 14; Domestic, Chapter 13.
• Bring together all heads of monetary claim for simple disputes.
• Net off any counterclaim if brought by the defendant
• State total due
• Payment schedule and specifics

Fees and costs

• Refer to the arbitrator in third person (i.e. "the arbitrator")
• Costs are based upon agreements made at the preliminary meetings between parties, and any events as a result, such as negotiations or the conduct of one party
• The arbitrator will decide who has been the successful party

Award declaration

• Parties will be expected to be held liable for said costs, for reasons stated by the arbitrator.

The End: Operative or Dispositive Part

• Section headed “The Award” / “The Dispositive”
• One of the most important section of the entire process
• Actions or any ambiguities related to the verdict are reviewed and rendered enforceable
• Reiterate the findings on various issues
• The award is made at the seat signed and dated and inclusive of relevant statements

Important Note: Arbitrator’s Fees and Expenses

• The arbitrator in all aspects must be third person and free from judgements and must not act to state payment for their own services
• A direction qua fees related to the arbitrator will cause the dismissal of the case should it not be abided.

Payments

• Payment for settlements are made based upon calendar expectations, be it business or otherwise.
• Payments must be made forthwith, if possible, to discourage the presence of high amounts of interest on missed payments

Jurisdictional Note

• To avoid jurisdictional chaos, states will require strict adherence to local tax laws when it comes to money awards.

The Ending: Attestation (signature)

• Before signing, it is important to read through the award to ensure that all matters that require a decision have been dealt with, that the award is internally consistent and coherent and that in form and substance the award is final and enforceable. Signing the award needs to include:

  • the date the award was made;
  • the arbitrator’s signature;
  • witnesses (if required).

Arbitrator drafting

• The style needs to be best suited for the arbitrator and the current case.

Publishing the Award

• This section explains what is required for the effective publication of the award
• The arbitrator has virtually completed the procedure that started with the service of the notice of arbitration. The evidence and submissions have been analysed: he has made findings of fact and considered and applied the relevant law; he has reached decisions on each of the issues and applied them in the operative parts of the award. All that remains is to publish the award to the parties as dictated in the Singapore International Arbitration Centre Arbitration Rules 2016

Awards publication

• Is to be delivered to the registrar once all claims have been settled
• An opportunity will be given for review in regards to an omission or clerical act

Jurisdictional and oversight reviews

• Substantive actions are not up for correction, actions are deemed to be final

Fees and payment

• Enforced across a jurisdiction should an omission or neglectful incident occur.
• Fees are inclusive of the associated expenses, barring prior contract agreements