By Dr AbdelGadir Warsama, Legal Counsel
August 15, 2024
Arbitration is the will of the contracting parties. If chosen by the parties, for the settlement of their dispute, then the award issued by the arbitral tribunal is final & enforceable.
The UNICITRAL rules contain necessary provisions regarding the final award issued by the arbitral tribunal. Arbitrators \ arbitration tribunals, shall be very careful in applying such provisions. For instance, with reference to the award decisions, if there is more than one arbitrator, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators. Herein, in case, there is no majority or when the arbitral tribunal so authorizes, the presiding arbitrator may decide alone but subject to revision, if any, by the arbitral tribunal.
Regarding the form and effect of the award, the arbitral tribunal may make separate awards on different issues at different times. All this, to a large extent depends on the experience of the arbitrators and how their conscience feels to reach justice.
In all cases, all awards shall be made in writing, this is, in case of the need for any action in the future. Also, awards shall be final and binding on the parties. The law provides that, the parties shall carry out all awards without delay.
When writing the award, the arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given (which is very rare to happen). Moreover, regarding the form, the award shall be signed by the arbitrators and it shall contain the date on which the award was made and the place of arbitration. Where there is more than one arbitrator and any of them fails to sign, the award shall state the reason for the absence of the signature and copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal. (In some cases, by the Arbitration Center).
An award may be public (normally secret) with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority.
Arbitration is the will of the contracting parties and therefore the arbitral tribunal shall apply the rules of law designated by them as applicable to the substance of the dispute. However, in case of failure to take such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate. Here also, this sensitive issue depends on the experience and know-how of the arbitrators.
As per the law, the arbitral tribunal shall decide as amiable “compositeur” or “ex aequo et bono” only if the parties have expressly authorized the arbitral tribunal to do so. However, in all cases, the arbitral tribunal shall decide in accordance with the terms of the contract, if any, and shall take into account any usage of trade applicable to the transaction.
As in many cases, if before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by the parties and accepted by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms (the most applicable). The arbitral tribunal is not obliged to give reasons for such an award.
If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason, the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order, unless there are remaining matters that may need to be decided and the arbitral tribunal considers it appropriate to do so.
In all cases, copy of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by to the parties.
After issuing the award, certain issues could emerge. As the need for interpretation of the award. Herein, within 30 days after the receipt of the award, a party, with notice to the other parties, may request that the arbitral tribunal give an interpretation. Due to its importance, such interpretation shall be given within 45 days after receipt of the request. The interpretation shall form part of the award.
In some instances, correction of the award may be requested. The law provides that, within 30 days after the receipt, a party, with notice to others, may request the arbitral tribunal to correct any error in computation, clerical or typographical error, or error or omission of a similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within 45 days of the request. Moreover, the arbitral tribunal may within 30 days after informing the award, make such corrections on its own initiative and all corrections shall be in writing and shall form part of the award.
In some instances, additional award may be required within 30 days after the receipt of the termination order or the award, a party with notice to others, may request the arbitral tribunal to make an award or an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal. Here, if the arbitral tribunal considers the request for an award or additional award is justified, it shall render or complete its award within 60 days after the receipt of the request.
Such steps, are necessary to achieve justice, by giving the parties and the arbitration tribunal the opportunity to apply what they deem necessary to reach a final award that could be suitable for execution and enforcement.