Author

Ms Kiran Gore

Professorial Lecturer in Law - The George Washington University Law School

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Operative part

I. Definition

1.

The “Operative Part,” also known as an award’s Dispositif, is the section of an award intended by the arbitral tribunal to have binding effect (res judicata) on the arbitration and its parties. It is often clearly labeled with an appropriate heading in the award.

II. Relationship to the award's statement of reasons

2.

The Operative Part cannot be read in isolation from other parts of an award, including its “Statement of Reasons". Yet, it is impossible to excise the Operative Part from the whole of an award. The Operative Part constitutes the arbitral tribunal’s decision itself, but to understand that decision clearly, it is necessary to refer to the Statement of Reasons of an award.1

3.

This is consistent with the well-established principle that the Statement of Reasons and the Operative Part are regarded as an indivisible whole within the award.2 The award must be read holistically for clarity and full meaning of its scope.3 An arbitral tribunal cannot disassociate itself from the Statement of Reasons that supports the Operative Part of its award.

III. Note on portions of the award that go beyond the operative part

4.

Practitioners should be reminded that, to the extent the Statement of Reasons (or other views) contained in an award go beyond the scope of the Operative Part and fall outside its actual decision, they have no binding effect on the arbitration or its parties.4

Bibliography

Ninth Annual Report of the Permanent Court of International Justice, Publications of the Permanent Court of International Justice, 1932-1933.

Lowe, V., Res Judicata and the Rule of Law in International Arbitration, African Journal of International and Comparative Law, 1996.

Shahabuddeen, M., Precedent in the World Court, Cambridge University Press, 1996.

International Law Association Berlin Conference (2004) International commercial arbitration, Interim Report: “Res Judicata” and Arbitration, 2004.

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