II. Sources of the requirements
The formal and procedural requirements the arbitral award may stem either from the applicable arbitration law (lex arbitri), the parties’ arbitration agreement or the institutional arbitration rules that parties choose to be applicable.2 If the award does not meet such procedural requirements, it may be subject to annulment.3
III. Mandatory requirements
The arbitral award in general should have a written form4 (see Article IV (1) of the New York Convention, Article 31 (1) UNCITRAL Model Law), however there are exceptions to this principle, e.g. in England, the parties may agree on the form of an award.5 The award should also stipulate the place of arbitration and the date of the award (see Article 47 (1) of the ICSID Convention, Article 31 (3) of the UNCITRAL Model Law). It should, in principle, state the reasons upon which it is based (Article 31 (1) UNCITRAL Model Law). The arbitral award should be drafted in the agreed language of the arbitral proceedings, absent parties’ agreement in a language appropriate under the circumstances (please see Language of the Proceedings) and should bear the arbitrators’ signatures – in most legal systems in principle all arbitrators need to sign the award with rules specifying what are the effects of failure to gather all signatures.6
IV. Content of the award
The contents of an award are usually determined by the arbitration agreement and the applicable lex arbitri.8 There are several information that the arbitral award should include,9 however, most of them are not mandatory:10
V. ICSID awards
When it comes to investment arbitration conducted according to the ICSID Arbitration Rules, the requirements of the award are regulated in Articles 46-49 of the ICSID Arbitration Rules.
The formal requirements are stated in Article 47 (1) of the ICSID Arbitration Rules – the award shall be in writing and should shall contain the following information:
Moreover, the award shall be drawn up and signed within 120 days after closure of the proceeding; however the Tribunal may extend this period by a further 60 days if it would otherwise be unable to draw up the award (Article 46 of the ICSID Arbitration Rules). The award shall be signed by the members of the Tribunal who voted for it; the date of each signature shall be indicated (Article 47 (2) of the ICSID Arbitration Rules).
Within 45 days after the date on which the award was rendered, either party may request, pursuant to Article 49 (2) of the Convention, a supplementary decision on, or the rectification of, the award (Article 49 (1) of the ICSID Arbitration Rules).
VI. Challenges to awards that fail to meet the formal requirements
The applicable legal provisions that regulate the procedure of challenging an arbitral award (Article V of the New York Convention and Articles 34 and 36 of the UNCITRAL Model Law) do not expressly provide that failure to meet the formal requirements of an award constitutes a ground for such challenge. The states rarely in their domestic legal system provide for form requirements as grounds a challenge with regard to arbitral awards made abroad.16 However, there were cases where such basis was the reason a party was seeking an annulment (or refusal of enforcement) of an arbitral award.
There are cases when an award has been successfully challenged due to failure to meet the requirement of the arbitrators’ signatures and the authentication of the award as per Article IV (1) (a) of the New York Convention. As an example, in an Italian case, the Court refused enforcement as only two out of three arbitrators’ signatures were properly authenticated.17 Additionally, in a rather old German case, the court refused enforcement as the award did not contain the names of the arbitrators.18 In turn, a Swiss court granted enforcement of an award despite the fact the presented award was lacking some of the necessary arbitrators’ signatures19 and in a recent case the Austrian court recognized an award with only a majority of signatures, as there was a valid explanation to such a formal defect.20
There was also an interesting case with respect to the requirement of stating the names of the parties in the award properly. In the LKT Industrial Berhad (Malaysia) v. Chun, the defendant opposed the enforcement of an award while stating it did not refer to him, as the name used therein was not his (Albert Chun Ying Llo instead of Albert Chun Ying Ho). However, the Court rejected the defendant’s arguments and stated the circumstances of the case proved the award did in fact refer to him.21
Moreover, even though the arbitral award should in principle be reasoned (Article 31 (1) UNCITRAL Model Law), it was decided by several courts that lack of motivation of an award, i.e. failure to state the reasons, cannot be the basis for its annulment.22 The courts stated that even though the fact that a reasoning constitutes a formal arbitral award requirement under their respective domestic systems, the failure to give reasons is not contrary to the public policy and thus lead to a successful challenge provided it was permissible under the lex arbitrii.23
However, under Article 52 (1) (d) and (e) of the ICSID Convention, either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based (please see Grounds of annulment of ICSID Awards). Additionally, if the reasoning was not drafted in a proper manner, it may be a basis for a request for interpretation – under Article 50 (1) of the ICSID Convention if any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary-General. Corresponding regulation is embodied in Articles 50-52 of the ICDIS Arbitration Rules.
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