The Arbitral Award

Question 1

Why does Rubino-Sammartano say tribunals should address costs as more than a minor issue?

Answer 1

It is part of their duty of care to give reasoned costs.

Question 2

What do Arts 5, 24, 26 of LCIA, s1(a), s33 of AA have in common?

Answer 2

They state that tribunals must render an impartial and reasoned award within reasonable time.

Question 3

What is the caveat of s26 LCIA? Why does this exist?

Answer 3

Although reasoned decisions must be given, the arbitrator and institution is immune from review.

The reason is that the arbitrators is held to account because they rely on repeat business and reputation. Being known for making arbitrary awards will affect one’s business.

Question 4

What is the significance of s30 AA?

Answer 4

A kompetenz-kompetenz clause, saying X can rule on extent and jurisdiction of X’s powers.

Question 5

What is the significance of SNE v Joc Oil Case?

Answer 5

Re separability and k-k. Despite contract being invalid, tribunal could set award at level that would have been given under contract.

Question 6

What are the options for a tribunal if challenged on its jurisdiction?

Answer 6

1. Can decide it has no jurisdiction.
2. Can issue binding interim decision.
3. Can adjoin jurisdiction issue to merits.
4. Power to issue default awards eg Libyan oil case ‘in interests of justice.’

Question 7

What is the significance of Art 23 LCIA, s30 AA?

Answer 7

Anti-suit injunction.

Question 8

How can a party challenge an award?

Answer 8

1. On rules adopted
2. On lex arbitri
3. On grounds
4. On way courts tend to treat challenges
5. Ignore award - may face enforcement

Question 9

What is significance of Art 35 ICC?

Answer 9

Tribunal must make every effort to ensure award is enforceable in law.

Question 10

What is the significance of Art 26 (9) LCIA?

Answer 10

Intended finality of awards. Intended not to be open to appeal or challenge.

Question 11

s57 AA, Art 27 LCIA refer to what?

Answer 11

Small corrections, errors in costs computation.

Question 12

What are the grounds on which a court can consider an award?

Answer 12

1. Uphold it (90% of cases)
2. Send back to tribunal for full/partial consideration
3. Set aside/annul - in some states the annulment will be respected, in others it will not.

Question 13

What is significance of Egmatra CV v Macro Trading Co?

Answer 13

The court would only exercise its discretion to allow appeal “where just and equitable in all circumstances.”

Question 14

In what other circumstances will appeals not be allowed?

Answer 14

1. Where applicable law not English (Athletic Union of Constantinople v National Basketball)
2. If a UK court, usually arbitration-friendly (BMBF No. 12 v Harland and Wolff)

Question 15

What is significance of Art 54 (2) ICSID?

Answer 15

That an ICSID decision cannot be appealed at all in national courts.

Question 16

What did ICSID say in MINE case?

Answer 16

“Only a substantial defect, falling clearly within the grounds listed in Art 52 ICSID Convention would justify annulment.”

Question 17

How can winning party seek to enforce compliance?

Answer 17

1. Negotiation, diplomatic pressure.
2. Concessions by winning party.
3. Enforcement by court.
4. Judicial mortgage vs assets.

Question 18

What are the cases in which Art V NYConv grounds for refusal was used successfully?

Answer 18

1. Heavy metal in China - public policy, “national sentiments.”
2. Liamco - subject matter not arbitrable.
3. Westacre Investments, Parsons & Wittemore - Recognition contrary to public policy

Question 19

What is significance of 26.9 LCIA Rule for purposes of AA s69?

Answer 19

The parties “waive irrevocably the rights to any form of appeal, review or recourse to any state court or other judicial authority,” meaning the s69 error of law is automatically opted out of.