Arbitration Awards: A Practical Approach
April 2005, Wiley-Blackwell
The preparation of an arbitrator's award requires a rigorous approach to the consideration of submissions and evidence, and to the decisions stemming from that consideration, and the arbitrator must be competent to draft a valid and enforceable award.
These tasks can be complex for any arbitrator, particularly so for the less experienced. This book has been written to provide clear and practical guidance, whilst emphasising that there is no standard method of preparing or writing an award. It includes illustrations relating to a wide range of types of award.
It will be of interest to all arbitrators and those involved in the process, whether they are concerned with commodities, insurance, maritime matters, rent disputes, construction or commerce.
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).
* Of interest to all types of arbitrator, whether commercial, maritime or construction
* Author has many years' experience as an arbitrator and trainer in the field
* 'Drawing on his long and practical experience [the author gives] guidance which only the foolhardy would reject without good reason for doing so. With this manual beside him, many an arbitrator will, I feel sure, sleep the sounder.’ -The Rt Hon The Lord Bingham of Cornhill
Ray Turner’s book is intended to be a manual or vade mecum and it succeeds impressively. There will be few arbitrators who would not profit by having it to hand.—International Construction Law Review
'Drawing on his long and practical experience [the author gives] guidance which only the foolhardy would reject without good reason for doing so. With this manual beside him, many an arbitrator will, I feel sure, sleep the sounder.’ -The Rt Hon The Lord Bingham of Cornhill
'If it had been available when I was starting as an arbitrator I would have been saved considerable pain and grief, and a lot of embarrassment. The layout of the book is logical and straightforward, making it easy to use and to follow. I found it compulsive reading... All in all a very useful book, well constructed and practical, which should be on the shelf (or better still, the desk) of every practising or aspiring arbitrator.' Arbitration 2005.
'There is an abundance of information and advice that will be invaluable to arbitrators in any common law jurisdiction, and arguably beyond....[The author is] renowned for both his incisiveness and his ability to explain difficult technical concepts in simple language.....Concise but comprehensive, this book is the work of a master of his craft.' Asian Dispute Review.
'An extremely practical approach to writing arbritation awards' Eric J Mouzer FRICS