Arbitral Awards: Types, Forms, Substance, Reliefs and Remedies.

FACULTY OF LAWUNIVERSITY OF IBADAN

A SEMINAR PAPER PRESENTED TO THE LL.M CLASS OF2013/2014 SESSION

TOPIC: ARBITRAL AWARDS: TYPES, FORMS, SUBSTANCE,REMEDIES AND RELIEFS

COURSE TITLE: LAW AND PRACTICE OF ALTERNATIVE DISPUTERESOLUTION 2

COURSE CODE: LPI 730

BY

OKORO, GRACE UGOMMAMATRIC NO. 181689

1

JANUARY, 2015TABLE OF CONTENT

TITLE PAGE 1

TABLE OF CONTENT 2

TABLE OF ABBREVIATIONS 3

1.0 INTRODUCTION 3

2.0 THE AWARD 4

3.0 THE MAKING OF THE AWARD 5

4.0 VALIDITY OF AWARDS 9

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5.0 CATEGORIES/TYPES OF AWARD 22

6.0 RELIEFS AND REMEDIES INHERENT IN AN AWARD 28

7.0 CONCLUSION

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BIBLIOGRAPHY

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TABLE OF ABBREVIATIONS

SCC: Stockholm Chambers of Commerce.

AAA: American Arbitration Association.

ICC: International Chamber of Commerce.

LCIA: London Court of International Arbitration.

ICSID: International Centre for Settlement of

Investment Dispute.

CIETAC: China International Economic and Trade Arbitration

Commission.

ICDR: International Centre for Dispute Resolution.

WIPO: World Intellectual Property Organisation.

UNCITRAL: United Nations Commission on International Trade

Law.

1.0 INTRODUCTION

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In any organised society there are courts which settle

differences between people in that society. If there is no

such court system, there will be chaos. Even in primitive

societies there are courts to settle disputes. The courts can

coerce anyone to appear before it, failure of which will

result in some sort of sanction1.

Arbitration is a way of settling disputes. It is a situation

where two parties decide before a dispute arises that if that

dispute arises between them, they will settle the dispute in a

particular manner. It is a mechanism according to which the

disputing parties appoint a person or a number of persons to

settle a dispute that may arise between them. Even if they had

not thought of it initially, they can do so within the course

of the contract at which they have the misunderstanding. It is

a method of settling disputes under which the parties agree to

be bound by the decision of a third party whose decision is,

in general, final and legally binding on both parties. This

process derives its force from the agreement of the parties,

with the aid of the courts which enforce these decisions.2

The term “international commercial arbitration” has never been

defined. However, there is fairly clear agreement on its

constituent elements. The most important of the three words is

arbitration itself.

Arbitration, is therefore defined as a reference of a dispute

between not less than two parties for determination after1 Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of LawUniversity of Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.2 Ibid.

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hearing from both sides in a judicial manner by a person or

persons other than a court of competent jurisdiction3.

The decision of an arbitrator is called an award. If it is

provided that in the event of a disagreement between the

arbitrators, the dispute is to be resolved by a third person,

then such a person is called an umpire, and his decision is

also called an award. It is to be noted that the current

Nigerian Arbitration Law makes no provision for an umpire, but

for a third arbitrator who unlike an umpire, cannot alone hand

down an award.

The distinction between an umpire and a third or presiding

arbitrator is that an umpire is usually present at the

arbitral proceedings from their commencement. He does not

participate in the proceedings but will only be an interested

listener. Where the two arbitrators disagree he then takes

over from them and hands down an award. A third (presiding)

arbitrator, on the other hand, commences the proceedings with

the other two, and they usually take their decisions,

including the award by a majority. In some jurisdictions, the

third arbitrator is empowered to take the decision himself

whenever they fail to arrive at a majority decision4. Arbitral

awards often involve matters of general legal interest, their

publication contributes to the development of the law, both of

international commercial arbitration and of the substantive3 Halsbury’s Laws of England, 4th Edition, Vol. 2, P. 255; Misr (Nig.) Ltdv. Oyedele (1966) 2 ALR Comm. 157.4 Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of LawUniversity of Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.

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law in question. However, publication brings in question the

confidentiality of the arbitration5. This seminar paper shall

be looking at the different types of arbitral awards, forms,

types, substance, as well as reliefs and remedies, while

peeping at the stance of some Arbitration Institutions and

National laws.

2.0 THE AWARD

Undeniably, there is no internationally accepted definition of

the term arbitral awards. None is to be found in the

International Convention dealing with arbitration, especially

the New York Convention which is specifically directed to the

recognition and enforcement of awards. The nearest the New

York Convention comes to a definition is:

“The term ‘arbitral awards’ shall include not only awards

made by arbitrators appointed for each case but also

those made by permanent arbitral bodies to which the

parties have submitted”6

One of the difficulties in finding an acceptable definition is

that there are many kinds of awards in the arbitral process.

There was a proposal to adopt a definition of awards which

dispose of some issues only and leave others until later. The

proposed definition was followed thus: “’Award’ means a final

award which disposes of all issues submitted to the arbitral

5 Aboul-Enein, M.I.M, “Dispute Settlement in International Trade,Investment and Intellectual Property” prepared at the request of the United Nations Conference onTrade and Development (UNCTAD) available at www.unctad.org and retrieved on 09/01/2015 at 9.00am.6 New York Convention, Art. 12

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tribunal and any other decision of the arbitral tribunal which

finally determines any question of substance or the question

of its competence or any other question of procedure but, in

the latter case, only if the arbitral tribunal terms its

decision award”.7

As this proposed definition shows, the need to distinguish

between awards which are final and those which are not, is a

complicating factor, the possible solution of defining each

separately was not adopted.8

3.0 THE MAKING OF THE AWARD

The period within which the award is to be rendered may be

measured from the time the arbitral tribunal was formed9, the

terms of reference were adopted,10 the case was submitted to

the arbitral tribunal,11 or the closure of the proceedings.

The time limits specified must be considered as a goal rather

than as strict limits. Time limits that are measured from the

date when the case is transmitted to the arbitral tribunal, or

its equivalent, may often turn out to be too restrictive,

7 Broches, (1984) “Recourse Against the Award; Enforcement of the Award,“”UNCITRAL’s Project for a Model Law on International Commercial Arbitration, ICCA Congress SeriesNo. 2, P. 208.8 Allan Redfern and Martin Hunter, (1999) Law and Practice of InternationalCommercial Arbitration, London: Sweet and Maxwell, (3rd edition, paragraph8-16.9 See, e.g., CIETAC Arbitration Rules, Article 52 (“nine months from thedate on which the arbitration tribunal is formed”).10 See, e.g., ICC Arbitration Rules, Article 24 (six months).11 See, e.g., Stockholm Chamber of Commerce, Article 33 (“six months asfrom the date when the case was referred to the Arbitral Tribunal”).

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especially in international commercial arbitration. Therefore,

institutions that have such time limits invariably have a

mechanism by which that time limit can be extended. The

extension is normally made by the institution on the

recommendation of the arbitral tribunal, rather than by the

arbitral tribunal itself. An example is found in the ICC

Arbitration Rules, Article 24:

“(1) The time limit within which the Arbitral Tribunal

must render its final Award is six months. Such time

limit shall start to run from the date of the last

signature by the Arbitral Tribunal or by the parties of

the Terms of Reference or, in the case of application of

Article 18(3), the date of the notification to the

Arbitral Tribunal by the Secretariat of the approval of

the Terms of Reference by the [ICC] Court.

(2) The [ICC] Court may extend this time limit pursuant

to a reasoned request from the Arbitral Tribunal or on

its own initiative if it decides it is necessary to do

so”.

Moreso, the parties in the arbitration agreement are also

competent to prescribe a time within which the arbitral

tribunal is expected to hand down an award, if the tribunal is

not able to hand down the award within the time, it can extend

the time with the consent of both parties. The extension can

be done retrospectively12. If the parties do not give their

consent, it seems that the arbitral tribunal can extend the12 Denton v. Strong (1874), L.R. 9Q.B.117; Knowles & Sons Ltd. v. BoltonCorpn. [1990]2Q.B.253.

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time as the arbitral tribunal can conduct the proceedings in

such a manner as it considers appropriate so as to secure a

fair hearing13.

Where a time limit for the making of the award is found in the

arbitration agreement or rules governing the arbitration, the

English Arbitration Law of 1996 permits the court to extend

it. However, this may be done only after “exhausting any

available arbitral process for obtaining an extension of

time.”14

If there is no time limit for making the award in the arbitral

agreement, it seems that the arbitral tribunal is obliged to

make the award within a reasonable time having regard to the

circumstances of the particular proceedings15.

Very few arbitration laws have time limits for the award,

since it is difficult to provide a general rule for all cases.

The ICDR’s Arbitration Rules and the WIPO Rules do not impose

any time-limits for delivery of the award. The arbitration law

of Peru does set a time limit of twenty days after the stage

of presentation of proof, but the limit is subject to the

contrary agreement of the parties, to a contrary provision in

13 See for example Section 15 (2) of the Nigerian Arbitration andConciliation Act, LFN, 2004 which provides that where the Rules are silent over a matter relevant to an arbitralproceedings, the arbitral tribunal can conduct the proceedings in such a manner as it considers appropriate soas to secure a fair hearing.14 England, Arbitration Act, Article 50.15 Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of LawUniversity of Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.

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the rules governing the arbitration, and to the right of the

arbitrators to extend the period by fifteen days16.

The consequences that might follow from an award not being

delivered within the time specified by the parties or the

arbitration rules are usually not specified. One possibility

is that an award delivered after the specified time might be

set aside as not having been delivered in accordance with the

procedure agreed by the parties. In Section 10 of the Nigerian

Arbitration Law17, the parties can terminate the mandate of the

Arbitrators if there is unexplained delay by the arbitral

tribunal to hand down an award within a specified time.

A different approach is taken by the arbitration law of Egypt

in its Article 45:

“(2)If the arbitral award is not rendered within the

period referred to in the preceding paragraph, either of

the two parties to arbitration may request the president

of the court referred to in Article (9) of the present

Law to issue an order either extending the time limit or

terminating the arbitral proceedings. In the latter case,

either party may bring the dispute to the court having

initial jurisdiction to adjudicate the case.”

During the drafting of the Model Law the question was raised

as to whether the Model Law should contain a provision on time

limits. However, it was agreed that the model law should

neither set such a time-limit nor deal with the legal

16 Peru, General Arbitration Law, Article 48.17 Arbitration and Conciliation Act, Cap A. 18, LFN, 2004

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consequences of the expiry of a time-limit stipulated by the

parties, since in international commercial arbitration the

circumstances varied considerably from one case to another.18

An award of an arbitral tribunal made up of more than one

arbitrator is by unanimity of all its members19 unless the

parties agree otherwise. But it may not be possible for the

arbitral tribunal to secure a majority decision in a

particular case, like where there are three arbitrators, it

may not be possible to get two of them to agree on a decision.

In some jurisdictions, an impasse (deadlock) is prevented by

providing that if the arbitral tribunal is unable to arrive at

a majority decision, the presiding arbitrator should make a

decision. An example is in Spain where Article 34 of their

1988 Arbitration Act provides as follows:

“The arbitration award, as well as any agreement or

resolution of the Arbitral Group, will be decided by a

majority vote, with the vote of the Chairman breaking tie

votes. If there is no majority agreement, the award will

be rendered by the chairman”20.

Similarly, the ICC Arbitration Rules provide that where no

majority can be reached by arbitral tribunal, “the award shall

be made by the chairman of the Arbitral Tribunal alone.”21 The18 Report of the Working Group on International Contract Practices on thework of its third session, A/CN.9/216, para. 74.19 Washington Convention, Art. 48(1); See also ICSID Arbitration Rules, r. 16(1).20 Spanish 1988 Arbitration Act; See Bernardo M. Cremades, 1991,Arbitration in Spain, La ley: Butterworths, pp. 78 & 154.21 ICC Arbitration Rules, Article 25(1).

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same rule is found in the English Arbitration Act22, the Swiss

Act 1987 Act and the LCIA Rules23.

However, there is no such provision in the Nigerian

Arbitration Law. It follows therefore that whenever the

arbitral tribunal is unable to reach a decision, the

arbitrators have to continue to deliberate until they are able

to achieve a compromise majority or unanimous decision.

It is submitted that this is a gap in our law which may create

problems for the arbitral process. It is suggested that if the

arbitral tribunal is unable to arrive at a majority decision,

the presiding arbitrator should have a casting vote and save

the arbitral tribunal from the impasse.

However, a requirement of unanimity would permit a

recalcitrant arbitrator to preclude the arbitral tribunal from

arriving at any award. Therefore, most arbitral rules and laws

provide that the award shall be reached by a majority of the

arbitrators, unless otherwise agreed by the parties. As

provided in the UNCITRAL Model Law, Article 29:

“In arbitral proceedings with more than one arbitrator,

any decision of the arbitral tribunal shall be made,

unless otherwise agreed by the parties, by a majority of

all its members. However, questions of procedure may be

decided by a presiding arbitrator, if so authorized by

the parties or all members of the arbitral tribunal.”

22 England, Arbitration Act, Article 20(4).23 LCIA Arbitration Rules, Art. 26.3; Swiss PIL Act, Ch.12, Art. 189.

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There are few national laws on arbitration that have

provisions in regard to dissenting or concurring opinions in

arbitral awards. During the drafting of the Model Law the

question was raised by the Secretariat as to “whether the

Model Law should take a stand on the issue of dissenting

opinions, e.g. either generally allow or generally prohibit

their issuance.”24 No action was taken in the Commission.

However, when Bulgaria adopted the Model Law it provided that:

“The arbitrator who disagrees with the award shall submit his

dissenting opinion in writing.”25 Conversely, the Chinese

arbitration law specifically permits a dissenting arbitrator

to refuse to sign the award26.

In making the award, the arbitral tribunal has to take into

account a number of factors. The way it deals with these

factors will determine the validity or otherwise of the award.

4.0 VALIDITY OF AWARDS

This shall be discussed under formal and substantive

requisites of an award.

(1) Formal Requisites

No special form is required in setting down an award, unless

the parties by their arbitration agreement have indicated a

special form. The UNCITRAL Arbitration Rules and the UNCITRAL

Model Law express the currently prevailing view that only a

24 Report of the Secretary-General, Analytical commentary on draft text ofa model law on international commercial arbitration, A/CN.9/264, Article 31, para. 2.25 Bulgaria, Arbitration Law, Article 39(1).26 China, Arbitration Law, Article 54.

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short list of matters is required to be in the award. The

award must: be in writing; be signed by the arbitrators or

contain an explanation for any missing signature; state its

date and the place of arbitration; state the reasons upon

which the award is based, unless the parties have agreed that

no reasons are to be given27.

A few arbitration rules or laws have more detailed

requirements28. They may include the identification of the

arbitrators, the parties and the authority of their

representatives, claims submitted and the dates and

circumstances of important procedural actions29.

However, in order to minimise ambiguities and prevent

questions arising in the future, an award is usually set down

into: The Recitals and The Operative Part.

The Recitals

It is a matter of choice whether an award should contain any

introductory matter by way of recitals. It is not necessary

for its validity to preface the award with recitals, but in

many cases they may be added with advantage, especially where

the nature of the award, or certain parts of it may be

difficult to understand without some preliminary explanation.

If recitals are introduced, they should be full and clear, and

should be so drawn as to lead up to the operative parts of the

27 UNCITRAL Arbitration Rules, Article 32; UNCITRAL Model Law, Article 31.28 See ICSID Arbitration Rules, R. 47; See also Section 26 of the NigerianArbitration and Conciliation Act, LFN, 2004.29 See ICSID Arbitration Rules, Rule 47 for such a detailed list of mattersto be included in the award.

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award. They must also be consistent with the subsequent parts

of the award. The following are matters which should be

referred to in the recitals, if they are included in an award:

a. The agreement or order for reference to arbitration.

b. The subject matter of the arbitration; that is to say,

the occurrence and nature of the dispute between the

parties.

c. The appointment of, and the authority delegated to the

arbitrator(s).

d. Any special powers or conditions of the reference, and

any special points or matters which have arisen during

the arbitration and which are specially decided in the

award.30

The fact that recitals are incorrect, false, incomplete, or

contain mistakes and errors, will not vitiate the award.

However, an inaccurate recital might lead to a misconstruction

of the award31. It is highly proposed that there should be a

lookout against mistakes and errors of this nature when

drafting recitals.

Instances of inaccurate recitals that did not vitiate the

award are:

30 John P. H. Soper, A Treatise on the Law and Practice of Arbitration,London: The Estate Gazette, pp. 74-75.31 Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of LawUniversity of Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.

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a. Where the arbitrator neglects to set out his authority,

or omits to recite the fact of the time having been

enlarged.32

b. Where the recital contains a mistake as to the Christian

name of one of the arbitrators.33

c. Where the recital contains a mistake as to the number of

the arbitrators by whom the award is executed.34

The Operative Part

This part of the award contains the finding and decision of

the arbitral tribunal upon the matters in dispute. It is the

only essential part of the award and will alone constitute the

award if there were no recitals. It is the duty of the

arbitral tribunal to give a decision upon the dispute which

has been submitted. And once the arbitral tribunal gives clear

and unequivocal decision, the form or words in which it is

expressed are of no importance.

Some arbitration laws require that all awards contain the

reasons on which they are based35. Most require reasons unless

the parties have agreed otherwise or the award is on agreed

terms36. The Netherlands arbitration law, Article 1057(4)(e)32 Barker v. Hunter (1847) 16M. & W. 672; 16L.J.Ex. 203; George v. Lousley(1806) 8 Eas.33 Trew v. Burton (1833) 1. C. & M. 712; 13 L.J.Ex. 215.34 White v. Sharp (1844) 12M. & W. 712; 13 L.J.Ex. 215.35 See, e.g., Belgian Judicial Code, Article 1701(6).36 The UNCITRAL Model Law contains such a provision in its Article 31(2).

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provides, in addition, that no reasons need be given in the

award if “the award concerns merely the determination only of

the quality or condition of the goods.” The Federal

Arbitration Act of the United States does not require reasons

to be given in an award.

However, the Nigerian Arbitration Law requires that the

reasons upon which the award is based should be clearly stated

on the award, unless the parties had agreed that no reasons

are to be given.37 If the award is an award on agreed terms

under Section 25 of the Act, then the arbitral tribunal should

state so on the award and in that case no other reasons are

required.38

Some arbitration institutions require reasons to be given in

all awards39. The most common provision appears to be that

reasons need to be given unless the parties have agreed

otherwise, the award records a settlement reached between the

parties or the parties have agreed that the arbitrators can

act as amiables compositeurs40.

Years ago, when many national laws were simpler and less

sophisticated than now, Lord Mansfield gave some excellent

advice to his fellow English Judges, which might equally have

been given to arbitrators:37 Section 26(3)(a) Cap. A18.38 Ibid.39 See, e.g., International Chamber of Commerce, Arbitration Rules, Article25(2). The requirement apparently applies even to a settlement recorded in the form of an award underArticle 26.40 See, e.g., UNCITRAL Arbitration Rules, Articles 32(3) and 34(1);American Arbitration Association, International Arbitration Rules, Articles 27(2) and 29(1).

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“Consider what you consider justice requires and decide

accordingly. But never give your reasons; for your

judgment will probably be right, but your reasons will

certainly be wrong”.41

Even today, there are arbitrations where the giving of reasons

is likely to seem superfluous. An arbitrator in a quality

arbitration, for example, who is asked to decide whether goods

which have been supplied do or do not correspond to sample,

can hardly do more than answer “yes” or “no”.

Internationally, the movement is in favour of giving reasons,

unless the parties agree otherwise. This may be seen in the

Model Law, which stipulates:

“The award shall state the reasons upon which it is

based, unless the parties have agreed that no reasons are

to be given or the award is an award on agreed terms”42.

The Washington Convention calls for a reasoned award, without

restriction.43 The ICC’s Court deems awards which are

insufficiently reasoned to be defective as to form. The

highest court of the United States has however ruled that:

“Arbitrators have no obligation to the court to give their

reasons for an award”44. The exception to this rule is where

the parties have provided for reasons to be given in their

41 Cited in Bingham, “Reasons and Reasons for Reasons: Differences Betweena Court Judgment and an Arbitral Award” (1988) 4 Arbitration International, p. 141.42 Model Law, Art. 31.43 Washington Convention, Art. 48. 3.44 United Steelworkers of America v. Enterprise Wheel & Car Corp. 363 US593, 598 (1960).

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arbitration agreement or the arbitral procedure is governed by

a law that requires a reasoned award.

The award must be in writing and signed by the arbitrator or

arbitrators. It must also comply with any other form required

by the parties. The making of the award must not be delegated

to another person.45 It was however held that an arbitrator

could employ a legal adviser to draw up the award.46

Execution

It is almost a universal requirement in international

commercial arbitration that the award be written and signed.

The New York Convention implies in its Article IV that the

award must be in writing, but does not say so explicitly.

The UNCITRAL Model Law states it explicitly in Article 31. The

English Arbitration Act, which applies to domestic as well as

international arbitrations, provides that the parties are free

to agree on the form of the award, e.g. that it may be oral,

but in the absence of such an agreement the award must be in

writing and signed47. There are different rules in regard to

the signature. A requirement that all of the arbitrators must

sign the award would allow a dissenting arbitrator to block

its issuance. Consequently, many arbitration laws and rules

provide that the award is valid if signed by a majority of the

arbitrators, though an explanation of the reason for any

45 Johnson v. Lathan (1850) 19L.J.Q.B. 32946 Re Underwood and Bedford and Cambridge Ry. (1861) 31 L.J.C.P.p. 1047 Article 52. The parties may also agree that the award does not have tocontain reasons or the date of its making or the seat of the arbitration.

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missing signature may be required48. A typical provision is

found in the UNCITRAL Model Law, Article 31:

“(1)The award shall be made in writing and shall be

signed by the arbitrator or arbitrators. In arbitral

proceedings with more than one arbitrator, the signatures

of the majority of all members of the arbitral tribunal

shall suffice, provided that the reason for any omitted

signature is stated.”

Some laws require only the signature of the presiding

arbitrator49. Others require the signatures of all the

arbitrators who voted for the award50.

In an arbitration with three arbitrators, must the three or

two out of the three arbitrators execute the award at the same

time and place in order to render the award valid? It was the

rule that “in the case of an award by more than one arbitrator

all the arbitrators making the award should execute it at the

same time and in the presence of each other”51. However, in

European Grain and Shipping Ltd. v. Johnson52 there were observation by

Lord Denning, to the effect that modern developments such as

telephone and typewriter and other forms of communication have

made communication a lot easier. The above rule should not

therefore be taken too literally now: provided that all the

48 Section 26 (1)& (2) of the Nigerian Arbitration and Conciliation Act,Cap. A18, LFN, 200449 See, e.g., Swiss Private International Law, Article 189(2).50 See, e.g., England, Arbitration Act, Article 52(3).51 Russell on Arbitration, 21st Edition, p.268; Re Lord and Lord (1835), 5E. & B. 404; Wade v. Dowling (1854)23 L.J.Q.B. 302.52 [1982] 1 Lloyd’s Rep. 414

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arbitrators communicate together as to the content of the

award, either in each other’s presence or by telephone or

documents. They should not all be present at one time, place

to sign the award.

Reverend Father (Dr.) O. Ezike, agrees with the above view. He

further opines that what is important is that the arbitrators

are ad idem. It should therefore be immaterial whether they all

sign the award together at a time or whether they sign

separately at different times.

Date and Place of the Award

It is an all but universal requirement that the award have on

it the date when it is made and the place of arbitration53.

Both have legal consequences, but neither needs to reflect the

place where and date when it was signed. In international

commercial arbitration once the proceedings have been closed,

the arbitrators return to their home countries. The draft

award will be circulated among the arbitrators for their

comments and approval. It would not be reasonable to require

all to return to a single place simply to sign it.

UNCITRAL Arbitration Law, Article 31(3) provides that: “The

award shall state its date and the place of arbitration as

determined in accordance with Article 20(1). The award shall

be deemed to have been made at that place.”

The place of arbitration plays a significant role throughout

the arbitration. It determines the law governing the

53 Article 52.

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arbitration and the courts empowered to act in support of, or

to interfere with, the arbitration. Similarly, stating the

place of arbitration on the award confirms the court before

which the losing party can move to have the award set aside.

It also establishes whether enforcement of the award can be

sought under the New York Convention.

According to the UNCITRAL Model Law, and all other modern

arbitration laws, the hearings and other procedural acts need

not have taken place at the place of arbitration54. As a

consequence, the “place of arbitration” may be factually

largely or completely fictitious. Even so, the “place of

arbitration” is of prime legal significance.

A few arbitration laws require the award to indicate where it

was signed in fact55. Such a provision can normally be complied

with easily in domestic arbitrations but is less practicable

in international arbitrations with arbitrators from several

countries. The date of the award determines when the award has

res judicata effect and can be executed by a court56. It also

begins the period within which the losing party can move to

have the award set aside57, though the time limit may be stated

to begin when the award is received.

UNCITRAL Model Law, Article 34(3) provides that: “An

application for setting aside may not be made after three54 See UNCITRAL Model Law, Article 20(2).55 See, e.g., Bolivia, Law on Arbitration and Conciliation, Article 56;Brazil, Arbitration Law, Article 26.56 See, e.g., France, New Code of Civil Procedure, Article 1478.57 See, e.g., England, Arbitration Act, Article 70(3), “within 28 days ofthe date of the award”.

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months have elapsed from the date on which the party making

that application had received the award …”.

Delivery and Publication

It goes without saying that the award must be notified to the

parties. Notification not only communicates to the parties

which of them has prevailed and their rights and duties under

the award, it commences the periods within which a party that

is not satisfied with the award can request the court to set

it aside and a prevailing party can move to have it recognized

and enforced.

The UNCITRAL Arbitration Rules, place on the arbitral tribunal

the obligation to communicate to the parties copies of the

award signed by the arbitrators58. Where the arbitration has

been conducted under the auspices of an arbitration

organization, the award will normally be communicated to the

parties by the secretariat of the organization. That is stated

explicitly in such rules as the German Institution of

Arbitration (DIS), the International Chamber of Commerce and

the International Arbitration Rules of the American

Arbitration Association59. Notification by the secretariat of

the institution will take place only once all of the fees have

been paid60.

58 UNCITRAL Arbitration Rules, Article 32(6).59 See, e.g., German Institution of Arbitration (DIS), Arbitration Rules,Article 36.2; ICC, Arbitration Rules, Article 28(1); American Arbitration Association, InternationalArbitration Rules, Article 27(5).60 See, e.g., German Institution of Arbitration (DIS), Arbitration Rules,Article 36.3; ICC, Arbitration Rules, Article 28(1).

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Arbitration laws typically place the burden of communicating

the award to the parties on the arbitral tribunal, since there

may be no institution involved. A typical provision is found

in the Netherlands Arbitration Law, Article 1058:

“(1) The arbitral tribunal shall ensure that without

delay: (a) a copy of any award, signed by an arbitrator

or the secretary of the arbitral tribunal, is

communicated to the parties.”

Once both parties have a copy of the award, there is no

inherent reason why the award must be kept by the arbitral

tribunal or arbitration institution. The UNCITRAL Arbitration

Rules do not, for example, have any such requirement.

Institutions usually do keep a copy, however, even where not

required to do so by law61.

Some arbitration laws require deposit of the award with the

court. The obligation normally falls on the arbitral tribunal,

but it may also fall on the successful party62. Most

arbitration rules provide that if the arbitration law of the

place of arbitration requires deposit with a public authority,

the arbitral tribunal is obligated to follow the provisions of

the law. Such a provision is designed to remind the arbitral

tribunal, which may be composed of arbitrators from countries

other than that of the place of arbitration, of the

61 See, e.g., Swiss Rules, Article 32.6. Retention of a copy by thearbitral tribunal or arbitral institution is not required by the Swiss Private International Law.62 Belgium, Judicial Code, Article 1702.2, (chairman of the arbitraltribunal); Egypt, Arbitration Law, Article 47, (successful party).

24

possibility of such a requirement. As provided in the UNCITRAL

Arbitration Rules, Article 32:

“(7) If the arbitration law of the country where the

award is made requires that the award be filed or

registered by the arbitral tribunal, the tribunal shall

comply with this requirement within the period of time

required by law.”

This communication to the parties constitutes publication. For

publishing the award to the outside world, it seems that the

consent of the parties must be secured. A conflict emerged

during the 1990s between the “inherent confidentiality” of the

arbitral process and the desire for publication of awards to

the outside world, in the interest of establishing a body of

precedent that might guide, if not bind other arbitrators. The

prevailing trend appears to favour publication. Awards of the

Iran-US Claims Tribunal have been comprehensively reported and

have been of guidance in other arbitrations63.

The ICC and ICDR Rules seem to be at ad idem by providing that

unless otherwise agreed by the parties, selected awards may be

made publicly available, with the names of the parties and

other identifying features removed64

There are other circumstances in which, even without the

consent of the parties, an award may more legitimately find

63 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell64 Ibid.

25

its way into the public domain65. This may occur, for example,

during court proceedings to challenge or enforce an award; or

when publicly quoted corporation is obliged to disclose in its

published accounts material information relating to its

liability66.

When once an arbitrator (or arbitrators as the case may be)

has executed his award, he becomes functus officio, that is to say,

his powers entirely ceases, save for the powers to correct and

interpret the award, or to make additional award.

Correction and Interpretation of Award

At common law the arbitral tribunal could not alter the award

in any way whatsoever. Indeed it could not even correct any

type of errors or mistakes whether clerical or typographical67.

However, arbitral tribunal can correct such errors, either on

its own initiative or at the request of a party. The time

within which such an error can be corrected is always limited.

One to two months is typical for international commercial

arbitration, though shorter periods are common for domestic

arbitration. This does not allow the arbitral tribunal to

correct the errors or mistakes of the arbitral tribunal

itself. In order words, it is not designed to be employed by

the arbitral tribunal to impeach its own award. Such was the

65 Ibid66 Paulsson & Rawding, “The Trouble with Confidentiality” ArbitrationInternational, Vol. 11, No. 3, pp. 303- 320.67 Halsbury’s Laws of England, 3rd Edition, Vol. 2, p.46; Mordue v. Palmer(1870) 6 Ch. App. 22; Henfree v. Bromley (1805) 5 B. & Ad. 518.

26

issue in the case of Sutherland v. Hannevig Brothers Ltd68. There, an

umpire made an award, and afterwards delivered an amended

award, making an alteration with respect to costs. The Court,

having come to the conclusion that the umpire had written down

what he intended to write in the original award, and not

omitted anything by accident, held that he had no power to

alter it, and that the original award must stand69.

Similarly, there may be occasions when the operative portion

of an award is unclear or where in a complex arbitration the

award appears to place inconsistent obligations on the

parties. In such a case it may be appropriate for the arbitral

tribunal to interpret the award for the parties. Most

arbitration rules provide for the possibility. ICC Arbitration

Rules, Article 29, provide that a party may make such a

request to the ICC Secretariat within 30 days of receipt of

the award70. The request will be sent to the other party who

will be given a short time, not exceeding 30 days, to comment

on the request. The arbitral tribunal is not bound to give the

requested interpretation. If it does decide to do so, the

interpretation takes the form of an addendum to the award and

becomes part of the original award71.

The interpretation must be of the award, not of the reasoning.

The arbitral tribunal must be careful not to allow a request68 [1921]1 K.B.33669 See also Pedlen v. Hardly (1920)18 T.L.R. 59170 See also Section 28 of the Nigerian Arbitration and Conciliation Actwhich provides for same 30 days.71 Since the interpretation is in effect a modification of the form of theaward, it must be submitted in draft to the ICC Court of International Arbitration for its review before it is sentto the parties.

27

for interpretation to become an opportunity for a party to

present new arguments in regard to matters that were already

settled in the award72.

The position under different sets of arbitration rules varies

considerably. The LCIA Rules contain an express power for the

arbitral tribunal to correct accidental mistakes or omissions,

but not to make interpretations of award73. The SCC Rules

contain a provision granting the arbitral tribunal power to

give a written interpretation of its award at the request of a

party, in addition to the power to correct clerical errors74.

(2) Substantive Requisites

An award in order to be valid must be certain, consistent,

possible, unambiguous, non-contradictory, unconditional and

unimpeachable. It must decide the matters in the submission

and no more. No technical expressions are necessary75. But as

awards often bind valuable rights for all times, the

arbitrator should be precise and clear in his adjudication.

Although the court is inclined to support the validity of an

award, such a presumption will not extend to the jurisdiction

of the arbitrator, for it has been said that the legal maxim

omnia praesumuntur rite esse acta (all things are presumed to have

been duly done) does not apply to arbitral proceedings or,

72 Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of LawUniversity of Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.73 LCIA Arbitration Rules, Art. 2774 SCC Rules, R. 20; See also, Art. 35(1)(2) and 37(1) of UNCITRAL ModelRules.75 Eardley v. Steer (1835) 4 Dowl. 423; 4 L.J.Ex. 293.

28

indeed, to the proceedings of inferior tribunals or, indeed,

to the proceedings of inferior tribunals of any sort.76

This maxim does not preclude a fair interpretation of an award

on matters submitted to arbitration. For the court will be

inclined to presume in favour of an award in clear and

comprehensive terms. Such was the decision of’ the Supreme

Court of Nigeria in the case of United Nigeria Insurance Co. Ltd. v.

Stocco.77 In this case, the Supreme Court held that:

“It is the duty of a court so to construe an award as to

make it, if possible, certain and final, and an award

will be sustained even though the arbitrator has omitted

to mention some claim or other matter submitted by a

party if, according to the fair interpretation of the

award, it is to be presumed that the claim or matter has

been taken into consideration; where an award purports to

he made concerning the matters submitted, the presumption

is that the arbitrator intended to dispose finally of all

the matters in difference, and the award is good

notwithstanding that the arbitrator has not made a

distinct adjudication on each or any of the several

distinct matters submitted to him, provided it does not

appear that he has excluded any; and an award which is

clear and unambiguous in its terms and deals with the

only issue in controversy must be deemed to have

impliedly disposed of all matters referred to the

76 Per Delvin J., in Brown v. Oesterreichischer Waldbesitzer R. G. m.b.H.[1954] 1 Q.B. at. p. 1377 (1973) S.C.N. p.231

29

arbitrator and all the points of claim and defence

submitted to him”78

The Award Must be Final

An award, in order to be binding, must settle all the points

raised under the arbitration agreement, so that the parties to

the dispute will be enabled to know their legal position

without having to resort to further judicial inquiry.79 Where

there is need, and in order to avoid rendering the award bad

for want of finality, the arbitrator can make an interim

award, that is an award dealing with certain matters referred

to him, to be followed later by a decision on remaining

points.

An award will not be bad on the ground of want of finality

when the parties have not brought to the arbitrator’s notice

all ‘the matters in dispute; provided he has in fact

adjudicated upon all the points that were presented to him.80

An award may be put in the alternative and at the same time be

final and binding. This will be the case where an award

directs one or two things to be done, and one of them is

uncertain or impossible, the award is nevertheless

sufficiently certain and final if the second alternative is

certain and possible; and it will be incumbent on the party to

perform the second alternative.81

78 Ibid. at p. 244.79 Samuel v. Cooper (1835) 2 A. & E.. 752; Wilkinson v. Hulse (1866) L.R.Ex. 251; Randall v. Randall (1805) 7 East 81.80 Elsom v. Water (1847) 2 Smith 459; Hawksworth v. Brammall (1839). 5 My.& Cr. 281.81 Simmons v Swaine (1809) 1 Taunt. 549.

30

Where the arbitrator omits to give the necessary directions to

effectuate the objects of his award the latter is not final.82

An award will be bad on the ground of want of finality when an

arbitrator reserves or delegates his judicial authority.83 But

an arbitrator can validly reserve or delegate a further

ministerial act to be done by himself or by another person at

any time, even after the time for making the award has

expired.84 An award that is not final will be set aside.

The Award Must be Certain

An award must be expressed in such a clear language that no

reasonable doubt can arise upon its face as to the meaning of

its provisions or as to the nature and extent of the duties

imposed by it on the parties. If there is any doubt as to

whether the award has decided the dispute or the question

referred, the award will be invalid. If the arbitrator does

not specify a sum of money but gives a rule for computing the

amount, the award is sufficiently certain in accordance with

the maxim id certum est quod certum redid potest.85 Therefore, some

awards, although they may appear to lack certainty, will not

be bad if they contain sufficient indications of the intention

82 Johnson v. Wilson (1741) Willes 248.83 Re O ‘Connor and Whitlaw (1919) 88 L.J.K.B. 1242 ; Tomlin v Mayor ofFordwich (1836) 5A. & E. 147.84 Thorp v. Cole (I835) 2 C.M. & R. 367 - In this case the arbitratordetermined the question which entailed the exercise of judicial acumen, but left the measurement, which was amatter not depending upon an individual’s discretion so much as on the accurate compliance with certainmathematical rules, to another person.85 That which can be made certain, is certain.

31

of the arbitrator(s) to enable decision of certainty to be

deduced.86 Some examples of uncertain awards are:

(i) where it provides that A or B shall do a specified act:

The award was declared void for it was uncertain by whom the

act is to be performed.87

(ii) where it directs a party to set up certain fixtures in

the place of others which had been removed, but does not

specify the value, quantity or nature of the fixtures to be

set up, it was held that the award was bad for uncertainty.88

The Award Must be Consistent

An award must be consistent in all its parts and not ambiguous

or contradictory89. This rule is practically a corollary to the

rule as to certainty. It applies more particularly to cases

where several issues have been referred or where from the

nature of the dispute the award directs the performance of

certain terms and conditions. In such cases, care must be

taken to see that the finding, or the terms and conditions,

are consistent one with another and with the general purport

of the award. An illustration of inconsistency can be seen in

arbitration where the question in issue was whether a fraud

had been committed. The arbitrator found that the accused

party was not guilty of fraud, but nevertheless decided

against him. The court set aside the award. Park J. stated that:

“The conclusion to which the arbitrator has come in this case

86 Law v. Blackburrow (1853) 23 L.J. C.P. 28.87 Lawrence v. Hodgson [1826] 1 Y. & J. 16.88 Price v. Popkin (1839) 10 A. & E. 139; 8 L.J. Q..B. 19889 Storke v. De Smith (1738) Willes 66; Sherry v. Richardson (1591) Pop. 15

32

is absurd. He says ‘I think he is innocent’ and then awards

against him”.90

The Award Must be Legal and Capable of Performance

This means that the award must be physically possible for the

parties to perform the award and to perform it without

contravening the law. The rule is similar to the rule of the

Law of Contract, which requires all contracts to be capable of

performance and to be legal and not contrary to public policy.

An arbitrator awarded that the defendant, in an action which

had been referred to him, should repair a weir and the eastern

bank of a river. The eastern bank of the river was not the

property of the defendant and he had no right to go on to it

to execute the repairs. It was held that the arbitrator had no

power to order an act which would amount to a trespass, and

the award was not binding91. This must however be distinguished

from a case where the award directs one of the parties to pay

a sum of money which is beyond his means. This would not be

regarded as a legal impossibility92. Similarly, if an act which

is possible at the time of the award afterwards becomes

impossible by the act of a party or of a stranger, the party

is not freed from his obligation to perform the award93.

The Award Must be Directed to all Matters Referred

The award must determine all the differences which the parties

by their agreement had referred to arbitration; otherwise it90 Ames v. Milward (1818) 8 Taunt 637.91 Lewis v. Rossiter (1875) 44 L.J. Ex. 136: 33 L.T. 260.92 See John P. H. Soper, p. 84.93 Russell on Arbitration, p. 285

33

will be bad and unenforceable94. An award which purports to

determine matters not comprised in the agreement of reference

is equally bad and unenforceable, unless the part of the award

which was beyond the scope of the agreement of reference can

be severed from that which deals with the matters comprised

within it, in which case the latter part will he held good and

valid95.

The court presumes that unless and until the contrary is

shown, the arbitrator has by his award determined those

matters, and those matter only, which were referred to him.

The burden of proving that he has awarded on matters not

referred, or that he has failed or omitted to award on matters

which were referred, lies on the party who seeks to impeach

the award96.

5.0 CATEGORIES/TYPES OF AN AWARD

The difficulty of defining an award was highlighted in the

earlier part of this paper. This difficulty partly stems from

the fact that there are various types of award which may be

made in arbitral processes. In addition to making a final

award the arbitral tribunal shall be entitled to make interim,

interlocutory or partial awards97.

94 Bradford v. Bryan (1741) Willes 268.95 See Re Wright and Cromford Canal Co. (1841) 1 Q.B. 98.96 Jewell v. Christie (1867) L.R. 2 C.P. 296; Bland & Co. Ltd v, RussianBank for Foreign Trade (1906) 11 Comm. Cas. 71.97 See Article 32(1) of the Nigerian Arbitration Rules (ACA, Arbitration Rules), LFN, 2004.

34

Examples of awards which exist and are recognized

internationally are:

(i) Final Award

In a sense, all awards may be said to be “final” in that

(subject to the possibility of challenge in the courts) they

dispose of one or more of the issues in dispute between the

parties. For instance an interim (or a preliminary award) by

the arbitral tribunal to the effect that it does have

jurisdiction to determine the dispute before it, is a final

decision on the issue of jurisdiction, subject of course to

any appeal to the court.

However, the term “final award” is customarily reserved for an

award which completes the mission of the arbitral tribunal or

better still is an award which contains the final decision of

the arbitral tribunal on all matters that were submitted to

it. As stated in the UNCITRAL Model Law on International

Commercial Arbitration, Article 32, “The arbitral proceedings

are terminated by the final award and the mandate of the

arbitral tribunal terminates with the termination of the

arbitral proceedings.

The handing down of a final award normally renders the

arbitral tribunal functus officio. It ceases to have any further

jurisdiction over the dispute; and the special relationship

that exists between the arbitral tribunal and the parties

during the currency of the arbitration ceases. This has

significant consequences. An arbitral tribunal should not

issue a final award until it is satisfied that its mission has

35

actually been completed. If there are outstanding matters to

be determined, such as questions relating to costs or

interest, or further directions to be given relating to the

disposal of property, the arbitral tribunal should issue an

award which is expressly designated as an interim award.98

(ii) Interim Award

An interim award or preliminary award, as it is sometimes

called is an award which disposes of a preliminary question,

such as the issue of the jurisdiction of the arbitral

tribunal. Alan Redfern, and Martin Hunter, described interim

award as “a useful weapon in the armoury of an arbitral

tribunal99. It is, so to say, a useful weapon in determining

matters which are susceptible of determination during the

course of the proceedings and which once determined, may save

considerable time and money for all involved.

If the arbitral tribunal has no jurisdiction to deal with the

dispute, it is in the interest of all involved that a decision

to that effect is made in the form of an award early in the

proceedings than that at the end of a lengthy proceeding it

turns out that the arbitral tribunal has no jurisdiction to

deal with the matter. This type of award even though it

pertains to the issue of jurisdiction and so may be regarded

as an interim award, is a final award as regards the matter of

jurisdiction of the arbitral tribunal. And also because the

arbitral tribunal after making that award, ceases to exist as

98 See Alan Redfern and Martin Hunter, para. 8-33.99 Ibid. para. 8-34.

36

it has decided in that award that it has no jurisdiction to

proceed with the arbitration.

The power of arbitral tribunal to issue interim awards may be

derived from the arbitration agreement or from the applicable

law100. It may be doubtful whether the arbitral tribunal can

make an interim award where there is neither express nor

implied provision to do so in the arbitral agreement, the

applicable rules or the applicable law. Where the arbitration

agreement incorporates international or institutional rules of

arbitration, these rules generally contain provisions for the

making of such award. The UNCITRAL rules, for instance, state

that “in addition to making a final award, the tribunal shall

be entitled to make interim, interlocutory, or partial

awards”.101

Moreso, the ICC Rules adopt a similar formula, defining the

term “award” to include “an interim, partial, or final

awards”. The LCIA Rules follow the same approach102.

Another example of a situation in which the device of an

interim award is likely to prove useful is in international

arbitration, where there is a dispute between the parties as

to the law or laws applicable to the merits of the case. If

this dispute is not resolved at an early stage, the parties

must argue their respective cases by reference to different

systems of law. They may even need to introduce evidence from

lawyers experienced in each of these different systems. In

100 Article 32 (1), UNCITRAL Arbitration Rules.101 Ibid102 LCIA Arbitration Rules, Art. 26(7)

37

such circumstances, it is often sensible for the arbira1

tribunal to issue a preliminary decision on the question of

the applicable law and, where this is done, it is usual,

although not essential, to make this decision in the form of

an interim award.

It is also a desirable practice to issue a preliminary award

in cases where the issues of liability can be separated from

those of quantum. This may be applicable where it is hoped

that once the question of liability is settled the actual

amount involved can be agreed by the parties or their

accountants, so that what is wanted is an award on liability

only, reserving questions on quantum of damages until later.

In such cases, the better course is usually for the arbitrator

to make an interim award. The disadvantage of an interim award

whether it is on an issue of jurisdiction, applicable law or

one of the substantive claims is that a further avenue for

judicial review with its consequent delay is created. Judicial

intervention during the course of arbitration might occur on

an application by one of the parties to set aside the interim

award103.

(iii) Partial Award

103 Another type of judicial intervention is with respect to theconfirmation of an interim award which exists in the United States, though not part of Nigerian law. In the UnitedStates for example, a partial award for the payment of freight was “confirmed” by a Court while there were stilloutstanding matters in dispute in the Arbitration-Mettallgesellschaft AG v. M/V Capitan Conatante andYacimientos Petroliferos Fiscales 790 F. 2d 280 (2nd Cir. 1986).

38

It is not easy to distinguish between an interim award and a

partial award. The various categories of awards listed in

Article 32(1) of the Nigerian Arbitration Rules are not

defined in the Nigerian Arbitration Act or in the Rules, and

no clear distinction is made between the awards in the above

Article. The two terms “interim” and “partial” awards are

sometimes used interchangeably. However, in civil law

jurisdictions, partial award is used to describe an award

which disposes of one or more of the monetary or other main

issues between the parties104.

(iv) Default Award

In some cases, international commercial arbitrations are held,

in which one party (usually the respondent) fails to

participate in the proceedings ab initio or withdraws from the

proceedings midstream.

It is not wise for a party against whom arbitration has been

commenced to refuse to participate in it and to present its

defences. In an earlier time it sometimes happened that a

respondent would refuse to participate in the appointment of

the arbitral tribunal and neither the rules that might have

been applicable nor the relevant arbitration law provided a

means to complete the tribunal. That would be a rare

occurrence today. Modern arbitration rules and law all provide

a mechanism for the appointment of any missing arbitrators105.

104 Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of LawUniversity of Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.105 See, e.g., UNCITRAL Model Law, Article 11(4).

39

The arbitration will commence even without the participation

of the respondent.

It is the common rule currently that the failure of the

respondent to submit a defence or to participate in the

hearings to which it has been given adequate notice does not

impede the arbitral tribunal from continuing the proceedings

on the basis of what is presented to it. The absence of the

respondent does not relieve the claimant from the obligation

to present its evidence to sustain the claims that it has

made. It can be anticipated that there will be such evidence

and the award will favour the claimant in all respects. The

UNCITRAL Model Law, Article 25, expresses this policy in the

following words:

“Unless, otherwise agreed by the parties, if, without

showing sufficient cause,

… (b) the respondent fails to communicate his statement

of defence in accordance with Article 23(1), the arbitral

tribunal shall continue the proceedings without treating

such failure in itself as an admission of the claimant’s

allegations.”

The award issued at the end of an arbitration in which the

respondent has not participated is usually known as a default

award and will be enforced so long as the respondent has been

given proper notice and an opportunity to present its case.

The importance of ensuring that the defaulting party is given,

and is seen to have been given, a full and proper opportunity

of presenting its case to the arbitral tribunal is clear. If

40

the arbitral tribunal makes an award in favour of the active

party in the proceedings, it will want to do its best to

ensure that the award is effective. To this end, it should

ensure, in particular, that the award recites in considerable

detail the procedure followed by the arbitral tribunal and the

efforts made by it to communicate the active party’s case to

the defaulting party, so as to give that party every

opportunity to present its own arguments and evidence106.

In addition to the motivation or reasons given, the award

should reflect the fact that the arbitral tribunal has

genuinely addressed itself to the merits of the case, in order

to show that a reasoned determination has been made of the

claims before the tribunal107.

The Award should also deal with questions of jurisdiction that

appear to the arbitral tribunal to be relevant, whether or not

such issues have been raised by one or other of the parties.

In this context, the ICSID Rules, which contain detailed

provisions for default proceedings, expressly stipulate that:

“The Tribunal shall examine the jurisdiction of the

Centre and its own competence in the dispute and, if it

is satisfied, decide whether the submission made is we-

founded in fact and in law”108

106 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell, (3rd edition, paragraph 8-16107 Ibid.108 ICSID Arbitration Rules, R. 42(4).

41

The above will ensure that the active party while coasting

home to victory, is at a lesser risk of his victory been

washed away by any decision of the national courts.

(v) Additional Award

The “final award” may not cover every issue that needs to be

decided in the arbitration. In some cases that is deliberate.

For example, the arbitral tribunal may leave to a subsequent

award a decision on the costs. In that case the “final” award

is really a partial award, though it may cover all of the

claims presented in the statement of claim.

In other cases, failure to cover all of the issues may arise

as an error on the part of the arbitral tribunal. Most

arbitration rules permit the arbitral tribunal to issue an

additional award on those claims that were presented to it.

This authority is usually strictly limited in time. A typical

provision is found in the UNCITRAL Arbitration Rules, Article

37:

“(1)Within thirty days after the receipt of the award,

either party, with notice to the other party, may request

the arbitral tribunal to make an additional award as to

claims presented in the arbitral proceedings but omitted

from the award.

(2) If the arbitral tribunal considers the request for an

additional award to be justified and considers that the

omission can be rectified without any further hearings or

42

evidence, it shall complete its award within sixty days

after the receipt of the request.”

While the Model Law permits the arbitral tribunal to make an

“additional” award only on the request of a party, some

national laws permit the arbitral tribunal to make the

additional award on its own initiative109. Other national

arbitration laws do not permit additional awards or may

restrict them to limited issues, such as a decision on costs.

Some national arbitration laws may permit a court to remit an

award to the arbitral tribunal to complete it in regard to a

claim that was not decided in the award, but this is not the

general rule110.

(vi) Consent Award

It is a frequent occurrence that the parties in arbitration

are able to arrive at a settlement. The settlement can, of

course, be formalized as an amendment to their original

contract or as a new contract. In that case, if one of the

parties does not fulfil its obligations under the settlement,

the other can commence a new arbitration (assuming that there

is a suitable arbitration clause) or litigation.

An alternative possibility provided in most arbitration rules

and laws is that the settlement be formalized as a consent

award. A typical provision is contained in the UNCITRAL Model

Law, Article 30:

109 See, e.g., England, Arbitration Law 1996, Article 57.110 See, e.g., Israel, Arbitration Law 1968, Article 22; England,Arbitration Law 1996, Article 68.

43

“(1)If, during arbitral proceedings, the parties settle

the dispute, the arbitral tribunal shall terminate the

proceedings and, if requested by the parties and not

objected to by the arbitral tribunal, record the

settlement in the form of an arbitral award on agreed

terms.

(2) An award on agreed terms shall be made in accordance

with the provisions of article 31 and shall state that it

is an award. Such an award has the same status and effect

as any other award on the merits of the case.”

The ICC Rules contain a similar provision: if the parties

reach a settlement, after the file has been transmitted to the

arbitral tribunal in accordance with Art. 13:

“the settlement shall be recorded in the form of an award

made by consent of the parties if so requested by the

parties and if the Arbitral Tribunal agrees to do so”.111

The qualification: “if so requested by the parties” and “if

the arbitral tribunal agrees so” indicate that under the 1CC

Rules though the use of the word “shall” suggest an

obligation, there is no obligation of either party or the

tribunal to make a consent award.

The arbitral tribunal may be told of the settlement by one of

the parties alone, especially if the settlement has been

recorded in a contract. Upon learning of the settlement, and

being convinced that it had really taken place, the arbitral

111 ICC Arbitration Rules, Art. 26.

44

tribunal is called upon to terminate the proceedings, by which

is meant the entire arbitration. It would be rare that a

tribunal would do so without having received assurances from

both or all the parties that the settlement had truly been

agreed upon.

The arbitral tribunal is to record the settlement in the form

of a consent award only if it is requested to do so by the

“parties”, i.e. by all the parties. As noted in Article 31(2),

a consent award is an award, which means that there can be

execution on it if one of the parties fails to live up to its

terms. It is the responsibility of the arbitral tribunal to

assure itself that it is not lending its assistance to

injustice in regard to a party, but there is little concern if

all the parties make the request.

The Model Law makes it clear that the tribunal need not record

the settlement as an award if it has an objection to doing so.

That is because the arbitral tribunal also has an obligation

to assure itself that the requested consent award does not

constitute a fraud or otherwise violate mandatory rules of

law.

6.0 RELIEFS AND REMEDIES

Arbitral awards may cover a range of reliefs and remedies

including:

45

(1) Monetary compensation112: The type of award most

often made by an international arbitral tribunal is one

that directs the payment of a sum of money by one party

to the other. This payment may represent money due under

a contract (debt) or compensation (damages) for loss

suffered, or both. The sum of money awarded is usually

expressed in the currency of the contract or the currency

of the loss. In large international projects, however, it

is not unusual for reference to be made to several

different currencies; so that, for example, plant and

equipment manufactured or purchased or purchased overseas

may be paid for in US dollars, whilst labour plant and

equipment made or purchased locally may be paid for in

the local currency. In such cases, unless the parties

agree, the arbitral tribunal must hear argument as to the

currency or currencies in which the award is to be made.

(2) Specific performance and restitution: Restitution

represents an attempt to put the clock back; that is to

say, it seeks to put the aggrieved party in the same

position as that party would have occupied if the

wrongful act had not taken place. In common law

terminology, it is a form of specific performance. In the

field of commercial arbitration it is a remedy that is

hardly ever used in practice, perhaps, because

international tribunals quite rightly tend to avoid

making awards that are difficult to enforce. There have

112 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell.

46

also been doubts as to whether an arbitral tribunal has

power to award restitution. In England, at least, the

question was resolved by the 1996 legislation; unless the

parties otherwise agree, an arbitral tribunal has the

same powers as an English court to “order a party to do

or refrain from doing anything”113.

(3) Injunctions: There is no objection in principle to

an arbitral tribunal granting relief by way of

injunction, if requested to do so, either on an interim

basis or as final relief. An arbitral tribunal is not

usually empowered to make effective orders against third

parties; and if injunctive relief is required, it is

generally quicker and more effective to seek it direct

from the Court114. Most sets of international and

institutional rules make it clear that the arbitration

clause is not to be taken as excluding the jurisdiction

of the relevant national Court(s) to make orders for

interim measures of protection115.

(4) Declaratory reliefs: The English Arbitration Act116,

made express provisions for the granting of declaratory

relief. Even when there is no such provision, however,

there is no reason in principle why an arbitral tribunal

should not grant such relief. Indeed, declaratory relief

has become a common remedy in international arbitration,113 Arbitration Act of 1996, Section 48(5)(a).114 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell.115 Ibid.116 Section 48(3)

47

with request for contractual damages often coupled with a

request for declaration that there has been a breach of

contract117. A declaratory award establishes the legal

position definitely and has binding effect as between the

parties.

(5) Rectification: An arbitral tribunal may make an

order for a rectification of a contract if empowered to

do so by the parties. If no express power is conferred by

the arbitration agreement, the question of the arbitral

tribunal’s jurisdiction to order rectification requires

closer examination. For example, a standard from

arbitration clause that refers to “dispute arising under

the contract” is probably not wide enough to include a

claim for rectification, since what is sought by

rectification is a rewriting of the contract to reflect

what one party claims to have been the agreement actually

made118. The phrase “in connection with” in the

arbitration clause may, however, be considered to give

the arbitral tribunal a wider power. In England119, an

arbitral tribunal has the power to “order” the

rectification, setting aside or cancellation of a deed or

other document unless the parties agree otherwise. This

express power to rectify is also reflected in the LCIA

Rules120.

117 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell.118 Ibid.119 English Arbitration Act 1996, Section 48(5)(c).120 LCIA Rules, Art. 22. 1(g).

48

(6) Adaption of contracts and filling gaps: Adaptation

of contract, or the “filling of gaps” in it, raises a

different issue from that of rectification121. When

parties have a continuing business relationship, but have

failed to provide in their contract for a particular

contingency that arises, it may be useful if they are

able to refer to a helpful outsider, such as an arbitral

tribunal, for a decision on how the contingency should be

dealt with. In the same way, where the parties have

entered into a long-term agreement but circumstances

change, it may be helpful if they are able to refer to an

arbitral tribunal for a decision as to what is to happen

in the changed circumstances. The problems are different.

In the first situation, there is simply a “gap” in the

contract to be filled; in the second situation the

contract may need to be amended, in whole or in part, to

meet changed circumstances122. Nevertheless, in both

cases, the helpful outsider is required to perform an

innovative role; that is to complete or to rewrite the

contract for the parties.

In legal theory, the filling of gaps in a contract poses

fewer problems than its adaptation. It may only be a

matter of degree, but adding an additional term to the

contract, on the basis that it meets the presumed121 Bernini, “Adaptation of Contracts” in New Trends in the development ofInternational Commercial Arbitration and the role of arbitral and other institutions, ICCACongress Series, No. 1.122 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell.

49

intention of the parties, is a less speculative

undertaking than actually changing the contract to meet

new circumstances. In practice, it is thus a smaller step

for an arbitral tribunal to imply a power to fill a gap

in the agreement than to imply a power to change it. Most

tribunals shrink from changing the terms of a contract

unless the arbitration agreement contained an express

power. In an English case, for example, a contract for

the sale of chickens over a five-year period left the

quantity “to be agreed” in subsequent years. The parties

could not agree, and the court treated the failure to

agree as a “dispute or difference” within the arbitration

clause and thus capable of determination by

arbitration123.

In practice, arbitral tribunals have proved very

reluctant to substitute their own views of a fair

allocation of contractual risk for that of the parties at

the time the contract was originally concluded. The ICC

has drawn up special rules for the adaptation of

contracts, but also, takes the view that the role is not

one best fulfilled by a conventional arbitral tribunal124.

The ICC thus, bases the power of a third party to adapt

the existing terms of a contract, or to insert new terms

therein, on an express power given by the parties; and it

indicates that an arbitrator appointed, for example under

123 F. & G. Sykes (Wessex) Ltd v. Fine Fare Ltd (1967) 1 Lloyd’s Rep. 53.124 Allan Redfern and Martin Hunter, (1999) Law and Practice ofInternational Commercial Arbitration, London: Sweet and Maxwell.

50

the ICC model arbitration clause, may not have such a

power because the applicable law many not permit it in

the sense that an arbitral tribunal’s ability to adapt a

contract may derive from the law applicable to the

substance of the dispute125. In some civil codes, the

doctrine of rebus sic stantibus is implied. It is said that the

contract is binding “so long as things stand as they

are”. The express terms may be absolute, but if a vital

change of circumstances has occurred, those terms may

need to be adapted to meet the changed circumstances126.

The doctrine is well developed in public international

law,127and stands as qualification, so to speak, of the

doctrine of pacta sunt servanda , that is to say, the doctrine

that the express words of the contract must be obeyed.

(7) Interest and costs: An award for the payment of a

monetary sum generally includes an award of interest; and

an award in respect of the other forms of reliefs discussed

above may carry with it an award of costs128.

7.0 CONCLUSION

From the foregoing discussion, we have looked at what an

arbitral award means, the types, forms, substance, reliefs and

remedies while referring to the arbitral institutions and

other jurisdictions apart from Nigeria.125 Ibid.126 Ibid.127 See, for instance, Bin Cheng, (1987) “General Principles of Law”(Grotius Publications Ltd).128 Although in proceedings for a declaratory award each side often pays itsown costs and shares equally those of the arbitral tribunal.

51

For all we have discussed above, it is our humbly

recommendation that the Nigerian Arbitration law be amended to

allow a third or presiding arbitrator to have a casting vote

if an arbitral tribunal is unable to arrive at a majority

decision so as to save the arbitral tribunal from impasse.

BIBLIOGRAPHY

CASES:

1. Mordue v. Palmer (1870) 6 Ch. App. 22.

2. Henfree v. Bromley (1805) 5 B. & Ad. 518.

3. Pedlen v. Hardly (1920)18 T.L.R. 591

4. Eardley v. Steer (1835) 4 Dowl. 423; 4 L.J.Ex. 293.

52

5. Brown v. Oesterreichischer Waldbesitzer R. G. m.b.H.

[1954] 1 Q.B. at. p. 13

6. Samuel v. Cooper (1835) 2 A. & E. 752.

7. Wilkinson v. Hulse (1866) L.R. Ex. 251; Randall v.

Randall (1805) 7 East 81.

8. Elsom v. Water (1847) 2 Smith 459.

9. Hawksworth v. Brammall (1839). 5 My. & Cr. 281.

10. Simmons v Swaine (1809) 1 Taunt. 549.

11. Johnson v. Wilson (1741) Willes 248.

12. Re O ‘Connor and Whitlaw (1919) 88 L.J.K.B. 1242.

13. Tomlin v Mayor of Fordwich (1836) 5A. & E. 147.

14. Thorp v. Cole (I835) 2 C.M. & R. 367.

15. Law v. Blackburrow (1853) 23 L.J. C.P. 28.

16. Lawrence v. Hodgson [1826] 1 Y. & J. 16.

17. Price v. Popkin (1839) 10 A. & E. 139; 8 L.J. Q..B.

198

18. Storke v. De Smith (1738) Willes 66; Sherry v.

Richardson (1591) Pop. 15

19. Ames v. Milward (1818) 8 Taunt 637.

20. Lewis v. Rossiter (1875) 44 L.J. Ex. 136: 33 L.T.

260.

21. Bradford v. Bryan (1741) Willes 268.

53

22. Re Wright and Cromford Canal Co. (1841) 1 Q.B. 98.

23. Jewell v. Christie (1867) L.R. 2 C.P. 296.

24. Bland & Co. Ltd v, Russian Bank for Foreign Trade

(1906) 11 Comm. Cas. 71.

25. Arbitration-Mettallgesellschaft AG v. M/V Capitan

Conatante and Yacimientos Petroliferos Fiscales 790 F. 2d

280 (2nd Cir. 1986).

26. F. & G. Sykes (Wessex) Ltd v. Fine Fare Ltd (1967) 1

Lloyd’s Rep. 53.

27. Re Lord and Lord (1835), 5 E. & B. 404.

28. Wade v. Dowling (1854)23 L.J.Q.B. 302.

29. Re Underwood and Bedford and Cambridge Ry. (1861) 31

L.J.C.P.p. 10.

30. United Steelworkers of America v. Enterprise Wheel &

Car Corp. 363 US 593, 598 (1960).

31. Johnson v. Lathan (1850) 19L.J.Q.B. 329

32. Barker v. Hunter (1847) 16M. & W. 672; 16L.J.Ex.

203.

33. George v. Lousley (1806) 8 Eas.

34. Trew v. Burton (1833) 1. C. & M. 712; 13 L.J.Ex.

215.

35. White v. Sharp (1844) 12M. & W. 712; 13 L.J.Ex. 215.

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54

37. Knowles & Sons Ltd. v. Bolton Corpn. [1990]2Q.B.253.

38. Misr (Nig.) Ltd v. Oyedele (1966) 2 ALR Comm. 157.

STATUTES:

1. Bolivia, Law on Arbitration and Conciliation.

2. Brazil, Arbitration Law.

3. Belgian Judicial Code.

4. Israel, Arbitration Law 1968.

5. France, New Code of Civil Procedure.

6. Belgium, Judicial Code.

7. SCC Rules.

8. American Arbitration Association, International

Arbitration Rules.

9. Washington Convention, Art.

10. Egypt, Arbitration Law.

11. Swiss Private International Law.

12. Spanish 1988 Arbitration Act.

13. ICC Arbitration Rules.

14. LCIA Arbitration Rules.

15. Swiss PIL Act.

16. Bulgaria, Arbitration Law.

17. China, Arbitration Law.55

18. UNCITRAL Arbitration Rules.

19. UNCITRAL Model Law.

20. ICSID Arbitration Rules.

21. Arbitration and Conciliation Act, LFN, 2004.

22. England, Arbitration Act.

23. Peru, General Arbitration Law.

24. CIETAC Arbitration Rules.

25. Stockholm Chamber of Commerce.

BOOKS/JOURNALS/INTERNET MATERIALS:

1. Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty

of Law University of Nigeria, Enugu Campus, Lecture

Notes on Law of Arbitration I & II.

2. Halsbury’s Laws of England, 4th Edition, Vol. 2, P. 255.

3. Aboul-Enein, M.I.M, “Dispute Settlement in International

Trade, Investment and Intellectual Property” prepared at

the request of the United Nations Conference on Trade and

Development (UNCTAD) available at www.unctad.org and

retrieved on 09/01/2015 at 9.00am.

4. Broches, (1984) “Recourse Against the Award; Enforcement

of the Award, “”UNCITRAL’s Project for a Model Law on

International Commercial Arbitration, ICCA Congress

Series No. 2, P. 208.

56

5. Allan Redfern and Martin Hunter, (1999) Law and Practice

of International Commercial Arbitration, London: Sweet

and Maxwell, (3rd edition, paragraph 8-16.

6. Bernardo M. Cremades, 1991, Arbitration in Spain, La ley:

Butterworths.

7. John P. H. Soper, A Treatise on the Law and Practice of

Arbitration, London: The Estate Gazette, pp. 74-75.

8. Russell on Arbitration, 21st Edition.

9. Bin Cheng, (1987) “General Principles of Law” (Grotius

Publications Ltd).

10. Allan Redfern and Martin Hunter, (1999) Law and

Practice of International Commercial Arbitration, London:

Sweet and Maxwell

11. Paulsson & Rawding, “The Trouble with

Confidentiality” Arbitration International, Vol. 11, No.

3, pp. 303-320.

12. Bernini, “Adaptation of Contracts” in New Trends in

the development of International Commercial Arbitration

and the role of arbitral and other institutions, ICCA

Congress Series, No. 1.

57