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Author

Ms Svetlana Portman

Associate - Debevoise & Plimpton LLP

Corrections of Mistakes in ICSID and UNCITRAL Awards

I. General

A. Definition

1.

The correction of an arbitral award is a post-award remedy available under various arbitral rules, including the ICSID Convention and the UNCITRAL Arbitration Rules.1

B. Purpose

2.

The purpose of this remedy is to enable the tribunal to correct mistakes or omissions that might have occurred during the drafting of the award through a simple procedure. This remedy cannot be used to alter the meaning of the tribunal’s underlying award.2

C. Scope

3.

This remedy is available only in respect of awards and is not applicable to other decisions of the tribunal.3 In accordance with Article 52(4) of the ICSID Convention, it is, however, also applicable to decisions on annulment rendered by ad hoc committees under the ICSID Convention.4 This remedy is designed for two types of defects in the arbitral award: (i) “inadvertent omissions”; and (ii) “minor technical errors in the award”.5

II. ICSID Arbitration

B. Substance

5.

The ICSID Convention allows the tribunal (or the ad hoc committee) to decide any question which it had omitted to decide in the award and rectify any clerical, arithmetical or similar error in the award.6 This power needs to be interpreted in light of the “finality of the award.”7 In other words, it should not be construed as permitting a reassessment or re-examination of the issues decided in the award or of the parties’ respective positions.8 Rectification should not become an inappropriate attempt to revise the merits of the tribunal’s underlying decision.9 In particular, supplementation is not appropriate if the parties had not submitted the issue to the tribunal or the ad hoc committee during the proceedings.10

C. Tribunal’s discretion

6.

Supplementation of the award is discretionary (the tribunal “may [. . .] decide any question which it had omitted to decide…”),11 while rectification of an error in the award is mandatory (the tribunal “shall rectify any clerical, arithmetical or similar error”).12

D. Procedure

7.

The tribunal may supplement the award or rectify the award only pursuant to a request by a party to the arbitration.13 An ICSID tribunal does not have the power to supplement or rectify the award on its own initiative.14 However, if a party has made a request for rectification of an error, the tribunal has also the power and duty to correct any error that has not been correctly identified by the requesting party in the interest of the correctness of the award.15 A party must request the tribunal to rectify or supplement the award within 45 days after the date on which the award was rendered.16

E. Effect

8.

The tribunal’s decision on a party’s request to rectify or supplement the award will become part of the award.17 The time limits for the revision or the annulment of the award (Articles 51(2) and 52(2) of the ICSID Convention, respectively) run only from the date of the tribunal’s supplemental or rectified decision.18

III. UNCITRAL Arbitration

A. Applicable provisions

9.

Article 38 of the 2010 UNCITRAL Arbitration Rules; Article 36 of the 1976 UNCITRAL Arbitration Rules (Article 38 of the 2010 Rules and Article 36 of the 1976 Rules are substantially the same save for the reference to “omissions” in the revised rules).

B. Substance

10.

The UNCITRAL Arbitration Rules allow the tribunal to correct any error in computation, any clerical or typographical error, or any error or omission of a similar nature in the award.19 This power does not extend to the revision of the reasoning or substance of the tribunal’s award.20

C. Tribunal’s discretion

11.

Correction of the award is mandatory if the request is justified (“If the arbitral tribunal considers that the request is justified, it shall make the correction”).21 The tribunal will make the correction within 45 days of the receipt of the request.22

D. Procedure

12.

The tribunal may correct the award pursuant to a request by a party to the arbitration.23 A party must request the tribunal to correct the award within 30 days after the receipt of the award.24 In addition, an UNCITRAL tribunal may make corrections to the award on its own initiative within 30 days after the communication of the award.25

E. Effect

13.

The tribunal’s corrections will form part of the award.26

Bibliography

Arif Hyder Ali, Jane Wessel, Alexandre de Gramont and Ryan Mellske, The International Arbitration Rulebook: A Guide to Arbitral Regimes (2019), 575-588.

Clyde Croft, Christopher Kee and Jeff Waincymer, A Guide to the UNCITRAL Arbitration Rules (2013), 415-418.

David D. Caron, Lee M. Caplan, The UNCITRAL Arbitration Rules: A Commentary (2nd Edition, 2013), 811-820.

Christoph H. Schreuer, Loretta Malintoppi and August Reinisch, The ICSID Convention: A Commentary (2009), 849-864.

Christoph H. Schreuer, Article 49, 13(1) ICSID Review - Foreign Investment Law Journal (1998), 298-326.

Luiz Olavo Baptista, Correction and Clarification of Arbitral Awards, in Albert Jan van den Berg (ed.), Arbitration Advocacy in Changing Times, (ICCA Congress Series Vol. 15, 2011), 275-284.

Andrew N. Vollmer and Angela J. Bedford, Post-Award Arbitral Proceedings, 15 (1) Journal of International Arbitration (1998), 37-41.

Stuart Isaacs, Life after Death: The Arbitral Tribunal's Role Following Its Final Award, in Neil Kaplan and Michael J. Moser (eds.), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles, (2018), 360-368.

Jeffrey Maurice Waincymer, Procedure and Evidence in International Arbitration (2012) 1330-1337, 1344-1345.

Jan Paulsson and Georgios Petrochilos, UNCITRAL Arbitration (2017), 345-351.

Nigel Blackaby, Constantine Partasides, et al., Redfern and Hunter on International Arbitration (6th Edition, 2015) 565-566.

James Castello, 'UNCITRAL Arbitration Rules, Section IV, Article 38 [Correction of the award], in Loukas A. Mistelis (ed), Concise International Arbitration 257 (Second Edition, 2015) 257-258.

Marc Lalonde, The Post-arbitral Phase in North America and Western Europe, in Albert Jan Van den Berg (ed.), International Arbitration in a Changing World, (ICCA Congress Series, Volume 6, 1994) 128-135.

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