Arbitration Awards: A Practical Approach
April 2005, Wiley-Blackwell
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Chapter 1: A preliminary introduction; 1.1 Purpose and nature; 1.1.1 Definition.
1.1.2 Purpose; 1.1.3 Nature; 1.1.4 Requirement for natural justice; 1.2 Relevant law; 1.2.1 General; 1.2.2 The Arbitration Act 1996; 1.3 Requirements of an enforceable award; 1.3.1 Formal requirements: 1 Writing and signature: 2 Identification of the parties: 3 Recitals: 4 Reasons: 5 Date: 6 Statement of Seat: 7 Issues dealt with: 8 Notification; 1.3.2 Substantive requirements: 1 Cogency: 2 Completeness: 3 Certainty: 4 Finality: 5 Enforceability: 6 Jurisdiction: 7 Legality: 8 Possibility: 9 Consistency: 10 Compliance with submission; 1.4 Distinctions from a judgement; 1.5 Illustrative monetary award (See Appendix 3).
Part B Background principles.
Chapter 2: Types of awards; 2.1 Introduction; 2.2 "Substantive" awards; 2.2.1 Monetary awards; 2.2.2 Declaratory awards; 2.2.3 Performance awards; 2.2.4 Injunctive awards; 2.2.5 Rectificative awards: 1 Rectification: 2 Setting aside: 3 Cancellation; 2.3 "Supportive" awards; 2.3.1 Awards on jurisdiction; 2.3.2 Agreed awards; 2.3.3 Awards on separate issues; 2.3.4 Awards on reserved matters; 2.3.5 Corrective or additional awards; 2.3.6 Awards following remission; 2.3.7 Awards giving further reasons; 2.3.8 Awards following payment during the reference; 2.3.9 Awards following: 1 earlier order giving provisional relief under section 39: 2 earlier adjudicator's decision; 2.3.10 Unreasoned awards; 2.4 "Procedural" awards; 2.4.1 Awards dismissing the claim; 2.4.2 Awards on abandonment; 2.5 "Institutional" awards; 2.5.1 Awards under rules or other statutes; 2.5.2 Awards under "consumer" schemes; 2.6 "Ancillary" awards.
2.6.1 When is an award (perhaps) not an award?.
Chapter 3: Style, content and check-lists; 3.1 Style; 3.1.1 Narrative style; 3.1.2 Language; 3.1.3 Headings and list of contents; 3.1.4 Reasons and their incorporation; 3.1.5 Checking; 3.2 Content; 3.2.1 In general; 3.2.2 Basic structure; 3.3 Expanded check-list; 3.3.1 Section A Heading; 3.3.2 Section B Background; 3.3.3 Section B1 Identification and jurisdiction; 3.3.4 Section B2 Interlocutory procedural matters; 3.3.5 Section B3 Hearing; 3.3.6 Section C Submissions and evidence; 3.3.7 Section D Analysis/findings/reasons/decisions; 3.3.8 Section E Value Added Tax implications; 3.3.9 Section F Interest; 3.3.10 Section G Costs; 3.3.11 Section H Operative section; 3.3.12 Section I Reserved matters; 3.3.13 Section J Signature and formalities; 3.3.14 Final check.
Chapter 4: An approach to decision-making; 4.1 Background; 4.2 Underlying matters; 4.3 The components of decision-making; 4.3.1 The substantive issues: 1 Basis of determination: 2 Collation of information: 3 Consideration of submissions: Agreed facts, Uncontested facts, Documentary evidence, Inspection of the subject-matter, Expert evidence, Facts to be found from consideration of evidence, Applicable law (or other basis), The pleadings/ opening and closing submissions: 4 Determination, issue by issue: 5 Accumulation of related issues: 6 Decision-making tasks - substantive issues: 7 Condensing reasons into suitable form; 4.3.2 Value Added Tax: 1 Background: General, Likely circumstances: 2 Decision-making tasks relating to VAT; 4.3.3 Interest: 1 Background, General, Restraint on discretion, Set-off?, Possible complexities, Post-award interest: 2 Decision-making tasks relating to interest; 4.3.4 Costs:1 Background: General, Costs follow the event, except ..., Basis of determination of recoverable costs, Effect of offer of settlement, Set-off?, Quantum, Arbitrator's fees and expenses: 2 Decision-making tasks relating to costs; 4.3.5 Reserved matters.
Chapter 5: Synthesis of an award; 5.1 Introduction to the illustrations; 5.2 The basic scenario; 5.3 Synthesis of an award; 5.3.1 Section A The Heading; 5.3.2 Section B Background; 5.3.3 Section B1 Identification and jurisdiction: 1 Identification of the parties: 2 Contract, or other relationship.3 Law of the contract:4 Arbitration agreement: 5 Provisions for appointment: 6 Applicable rules: 7 A dispute having arisen: 8 Nature of the dispute and matters in issue: 9 Appointment: 10 Challenge to jurisdiction: 11 Basis for decision: 12 Other matters; 5.3.4 Section B2 Interlocutory procedural matters: 1 Transfers: 2 Seat: 3 Interlocutory agreement on rules, powers or procedures Procedural/ evidential matters, Consolidation/ concurrent hearings, Experts, legal advisers, assessors, Property the subject of proceedings, Preservation of evidence: 4 Use of uncommon powers: 5 Clarification/ amendment of issues: 6 Previous awards: 7 Issue(s) to be determined by this award: 8 Meetings: preliminary, further, review: 9 Consequent/ subsequent applications/ orders Attended hearing or "documents only", Type of statements, timetable, Disclosure/ production of documents, Exchange of witness proofs and experts' reports, Meetings of experts, Language and translation, Questions to be put, Other relevant matters: 10 Resultant party action Brief details of exchange, Admissions or agreements, result of meeting(s) of experts, Any resultant reduction in/ expansion of matters in issue: 11 Other directions and/or administrative actions Orders for security, Limitation of costs, Any valid "costs in any event" agreement, Any "costs in any event" directions:12 Provisional orders: 13 Party default (and consequence Inordinate or inexcusable delay, Failure to comply with order/direction: 14 Peremptory orders: 15 Other relevant matters; 5.3.5 Section B3 Hearing: 1 Transfers: 2 Hearing: 3 Failure to attend / ex parte proceedings: 4 Representation and witnesses: 5 Oral evidence: 6 Default during hearing: 7 Inspection: 8 Agreed list of issues: 9 Other matters; 5.3.6 Section C Submissions and evidence: 1 The contentions: 2 Opening and closing submissions: 3 Witnesses / evidence, if not covered in B Identification of witnesses, Precis of relevant evidence, Equivalent description in ex-parte proceedings: 4 Inspection, if not covered in B Purpose of inspection, Result of inspection: 5 Other matters; 5.3.7 Section D Analysis/ findings/reasons/ decisions: 1 List of issues: 2 Common ground: 3 Analysis of submissions and evidence Facts/ law/ application/ decision, Interest as special damages, Decision on substantive issue(s), Counterclaim or set-off: 4 Summary of decisions on substantive issues: 5 Amounts paid during period of arbitration; 5.3.8 Section E Value Added Tax implications: 1 Dealing with Value Added Tax; 5.3.9 Section F Interest: 1 Interest within the award: 2 Post-award interest; 5.3.10 Section G Costs: 1 Award of costs; 5.3.11 Section H Operative Section (Award): 1 Introduction: 2 Type of award: 3 Conditions or terms: 4 Time for performance: 5 Post-award interest: 6 Value Added Tax: 7 Costs; 5.3.12 Section I Reserved matters; 5.3.13 Section J Signature and formalities.
Part D Illustrations.
Chapter 6: Substantive awards; 6.1 Introduction; 6.2 A Monetary award; 6.3 A Monetary award without any counterclaim; 6.3.1 Where the claim is successful: 1 Summary; 6.3.2 Where the claim fails; 6.4 A Monetary award with a counterclaim; 6.4.1 Counterclaim which constitutes a set-off: 1 Heading and Preamble: 2 Dispute/ matters in issue: 3 Issues in this award: 4 Inspections: 5 Contentions re Counterclaim: 6 Analysis/ Decisions/ Counterclaim or set-off: 7 VAT implications: 8 Interest: 9 Costs - single event: 10 Operative section; 6.4.2 Counterclaim which does not constitute a set-off: 1 Background and submissions: 2 Counterclaim or set-off: 3 Interest: 4 Costs - separate events: 5 Operative section: 6 Reserved matters; 6.4.3 Counterclaim variants; 6.5 A Declaratory award; 6.6 A Performance award; 6.7 An Injunctive award; 6.8 A Rectificative award.
Chapter 7: Supportive awards; 7.1 Introduction; 7.2 An award on jurisdiction; 7.3 An agreed award; 7.4 Awards on separate issues; 7.4.1 The first award; 7.4.2 Subsequent awards; 7.5 An award on reserved matters; 7.5.1 On matters other than the amount of recoverable costs; 7.5.2 On the amount of recoverable costs; 7.6 A corrective or additional award; 7.6.1 A Corrective award; 7.6.2 An Additional award; 7.7 An award following remission; 7.8 An award giving further reasons; 7.9 An award following payment during the reference; 7.9.1 Where payment made no provision for interest; 7.9.2 Where payment made provision for interest; 7.10 An award following; 7.10.1 an earlier order giving provisional relief: 1 relating to substantive claim: 2 relating to costs; 7.10.2 an earlier adjudication; 7.11 An unreasoned award.
Chapter 8: Procedural awards; Institutional awards; Ancillary awards; 8.1 Introduction; 8.2 Procedural awards; 8.2.1 An award dismissing the claim: 1 entire claim: 2 certain (but not all) issues; 8.2.2 An award on abandonment: 1 Settlement in unknown amount: 2 Abandonment as such "Closing order", Abandonment before acceptance of appointment, Abandonment after acceptance of appointment, It could have been an award, but ...;8.3 Institutional awards; 8.3.1 An award under rules (or other statute); 8.3.2 An award under a "consumer" scheme; 8.4 Ancillary awards; 8.4.1 When is an award (perhaps) not an award?.
Part E Variants.
Chapter 9: Other options and variations in content; 9.1 Introduction; 9.2 Format of this chapter; 9.3 Options and variations; Section A 9.3.1 Heading; Section B 9.3.2 Background; Section B1 9.3.3 Identification and jurisdiction: 1 Identification of the parties/Contract or other relationship A claim in tort / submission agreement: 2 Provision for appointment/ Appointment Appointment by appointing authority: 3 Basis for decision; Section B2 9.3.4 Interlocutory procedural matters: 1 Seat: 2 Interlocutory agreement on rules, powers or procedures On procedural and evidential matters, On consolidation / concurrent hearings, On appointment of experts, Relating to property ..., On preservation of evidence: 3 Use of "uncommon" powers: 4 Meetings ...pre-hearing review: 5 Consequent and subsequent applications and orders Attended hearing or "documents only"?: 6 Resultant party action Result of meeting(s) of experts: 7 Other directions and/or administrative action Orders for security, Limitation of costs: 8 Provisional orders: 9 Party default/ Peremptory orders; Section B3 9.3.5 Hearing: 1 Failure to attend / ex-parte proceedings; Section C 9.3.6 Submissions and evidence: 1 Rules of evidence - relaxation; Section D 9.3.7 Analysis etc: 1 Analysis under section 46(1)(b): 2 Appended reasons; Section E 9.3.8 Value Added Tax: 1 VAT not applicable: 2 VAT as a component of damages; Section F 9.3.9 Interest: 1 Intervening event; Section G 9.3.10 Costs: 1 Award on reserved liability for costs/ rejected offer of settlement; Section H 9.3.11 Operative section: 1 Time for performance/ compliance: 2 Post-award interest - starting date: 3 Release or disposal of security for costs; 9.4 Tribunals other than a sole arbitrator; 9.5 Multi-party arbitrations; 9.6 Effect of party autonomy.
Part F Appendices.
Appendix 1 Expanded check-list (from Chapter 3).
Appendix 2 Manual collation of submissions and evidence.
Appendix 3 Substantive monetary award (from Chapter 5).