ARBITRATION AWARDS

Branch Meeting 13 May 1997

Alan Shilston

The format of this talk was derived from a desire for members to spread their experiences.

Alan based his talk on a recently completed award following an arbitration conducted somewhere in the Middle East by a sole arbitrator and concerning disputed civil engineering contract works. Because the essence of arbitration is confidentiallity, it is not easy to pass on experiences other than in skeletal and global terms.

We believe that arbitration is different from litigation but we look for guidance to the courts and judges. In the Times Law Reports of 19 May 1981 under a head of 'New Procedures for Arbitration', Donaldson LJ described how he thought lay arbitrators ought to lay out their awards. (see Bremer Handelsgesellschaft mbH -v- Westzuker GmbH (No 2) [1981] 2 Lloyds Rep 130)

• Arbitration is a continuous learning process, the key word is flexibility. Appointers should not fall into the trap of experience being all.
• Arbitration is a non-confrontational procedure, based on concensus and is all about getting the procedure right.
• Confidentiallity is central to arbitration.
• Arbitration should be business friendly.

Alan then went briefly through the headings and paragraphs of his award.

Questions and discussion

l English awards are subject to appeal, therefore awards are aimed at appeal. This award is addressed to the parties. Would it be different in England.

AS: If in England, I would have done it in the same way. I am offering a suggestion of a pattern of award as a commercial report rather than having a stylised thing which may not come so readily.

I cannot understand how CIArb can hold exams on awards without anything in literature showing what an award should look like.

It seems to me that the court practice in producing judgments (and style is in 1st person) and are now having headings and sub-headings and are going down the route of commercial reports.

l Noted that AS had sent an unbound award. Should not the signed award be bound even if loose sheets sent separately. As the award was to be in English and Arabic, is there not a chance that the arabic version is not actually an award.

AS: The parties had it in mind that there could be difficulty in producing an arabic translation but this did not materialise. The English award was signed in August, AS was then on board for a further 3 months in case the local parties found that they needed arabic translation.

l Concern was that there was an obligation to sign in English and Arabic. How would the arbitrator know that the arabic version was actually his award. should an English arbitrator say that he would only sign the English version, the parties must translate separately.

l You were obviously very careful to carry the parties with you

AS The discussions culminated in a decision as to the parties final submissions. This was an advantage of arbitrating in underdeveloped countries.

l Is it sometimes necessary to recite the issues.

AS In part 1, section 6 of my award 'Summary of the nature of the dispute', I set out as early as possible in effect what the issues were.

l Can you point out what may be omitted from domestic awards

AS Agreed that many 'home spun' comments are not appropriate to an English award but the structure would be similar. The concept of good faith is central to their legal philosophy. The award was a re- statement of what emerged in discussions.

l Please expand on discussion of standard forms of contract within the award - was it put by the parties?

AS Part of the function of the award in underdeveloped countries is to help the parties with their business development. I thought that the evaluation of standard forms of contract to put the case in context was useful in the same way as judges may refer to past cases

l Returning to an award written in a foreign language - I would be reluctant to sign other than in the language in which it was written.

AS It is a difficult matter but is necessary to give local effect to the award. I may have had to confer with the translator then there would be an 'overlord' to verify. I would then sign. The arbitrator is there to discharge the matter.

l Could it be possible to give precedence to the English version

AS There clearly are problems. It is essential to keep the communication process going.

l Who represented the parties and what disciplines were the expert witnesses

AS The European tradition is to use court-appointed experts - those appointed by the parties are perceived to be partisan. The debate is continuing on whether we should go towards court appointed experts. All correspondence was by the parties themselves although a lawyer input was undoubtedly in the background. There was no formal need for advocates. System was draft statements of case, refined to final statements of case.

l Are there many documents-only arbitrations going on all the time

AS It is unusual in this country to have multi-million pound arbitrations on documents only although it is more common in civil law traditions and that is the way forward in the international field. The adversarial approach is alien to the Far East.