I. Introduction

The ICC Court's scrutiny process for awards is one of its most prominent forms of 'added value' relative to other institutional and ad hoc arbitration procedures.2 Although this part of the ICC process reduces the risk of errors in the text of awards, parties nonetheless occasionally receive awards containing transposed numbers or passages too vague to be sure of the arbitral tribunal's intent. Article 29 of the 1998 ICC Rules of Arbitration was meant to remedy this problem, by allowing arbitral tribunals to correct awards on their own initiative, and to correct or interpret their awards upon request by a party. This new article formalized what was already to a large extent an accepted ICC Court practice and brought the ICC Rules of Arbitration (hereafter the 'Rules') into line with similar provisions in other arbitration rules such as the UNCITRAL Arbitration Rules and the AAA International Arbitration Rules. 3

The full text of Article 29 is as follows:

Article 29

Correction and Interpretation of the Award

1

On its own initiative, the Arbitral Tribunal may correct a clerical, computational or typographical error, or any errors of similar nature contained in an Award, provided such correction is submitted for approval to the Court within 30 days of the date of such Award.

2

Any application of a party for the correction of an error of the kind referred to in Article 29(1), or for the interpretation of an Award, must be made to the Secretariat within 30 days of the receipt of the Award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the Arbitral Tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. If the Arbitral Tribunal decides to correct or interpret the Award, it shall submit its decision in draft form to the Court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the Court may decide.

3

The decision to correct or to interpret the Award shall take the form of an addendum and shall constitute part of the Award. The provisions of Articles 25, 27 and 28 shall apply mutatis mutandis. [Page62:]

Prior to the adoption of the 1998 Rules, the ICC Court allowed correction and interpretation of awards in reliance on its general rule that the Court should make every effort to assure that its awards are enforceable at law. 4 In such cases, the Court expected an arbitral tribunal's decision to correct or interpret an award to contain a finding that the applicable procedural law allowed for correction or interpretation. 5 This often resulted in extra work for the tribunal, especially in cases where it was not immediately clear what the applicable procedural law was. 6

The introduction of Article 29 simplified the work of tribunals and parties in search of a legal basis for correction or interpretation. It also informed parties of a procedure that they might not have considered available had they been acting under a previous version of the Rules. Not surprisingly, these applications appear to be increasing as parties become more familiar with the 1998 Rules. 7 Of course, the success of Article 29 depends on how well it serves its intended purpose rather than on how frequently it is used.

With any new rule or law, issues commonly arise at the implementation stage that may not have been foreseen by the drafters. Some of the ambiguities that became evident during the initial use of Article 29 were clarified in the 'Note of the Secretariat of the International Court of Arbitration of the International Chamber of Commerce regarding Correction and Interpretation of Arbitral Awards', dated 1 October 1999 (hereafter the 'Note'). 8 Among other things, the Note was meant to assure that decisions of arbitrators not to correct or interpret their awards would be submitted for scrutiny by the ICC Court and thereby avoid the fate of the tribunal's decision in case 7307, which was set aside by the Paris Court of Appeal. 9 The ICC applies the Note and Article 29 in the administration of all requests for correction or interpretation, including cases held under previous versions of the Rules. However, in pre-1998 Rules cases, correction and interpretation cannot automatically be considered as part of the procedural rules agreed by the parties, so tribunals acting in those cases will, as before, need to refer to applicable procedural law for their authority to correct and interpret. 10

Beyond the Note, further enlightenment has come from tribunal and ICC Court decisions in more than 90 cases11 where Article 29 applications have been made. Several of these are summarized herein and should offer guidance to practitioners in future proceedings where Article 29 is invoked.

II. The proper basis for an Article 29 application

One of the main fears of the drafters of the 1998 Rules regarding Article 29 was that losing parties would resort to it automatically, in an attempt to appeal the tribunal's decision on the merits. 12 In addition to prolonging ICC proceedings, this would [Page63:] undermine the finality of ICC awards, which is generally considered an attractive feature of ICC arbitration. Besides, this was not the intended purpose of Article 29, which was rather to allow tribunals to express more clearly the substantive findings set forth in an award, not to change findings or make new findings. 13 Many parties nevertheless appear to be trying to reargue substantive matters in Article 29 applications. Whether the cause is misunderstanding of Article 29's meaning, or the nearly irresistible temptation to make a final effort to change the tribunal's mind, the number of applications rejected in Decisions rendered by tribunals suggests that nearly one third of all Article 29 applications fall into this category. 14

A. Correction

The Rules provide for correction of clerical, computational, or typographical errors, or any errors of similar nature. Requests for correction, as opposed to interpretation, might be expected to be the most straightforward type of Article 29 application, and some, such as corrections on the tribunal's initiative, do tend to be fairly simple. An example is the tribunal's Addendum in case 10386, 15 which provides for the replacement of a period with a comma in order clearly to separate hundreds and thousands and avoid any confusion with a decimal point in English numerical notation.

There are also examples of easily corrected errors in Article 29 applications submitted by parties. One of these is case 9391, 16 where the tribunal decided in its final award that each party should bear 50% of the costs of arbitration, but the amount the respondents were ordered to pay in this respect was equal to 100% of such costs. The respondents submitted an Article 29 application and the tribunal, realizing its error, issued an Addendum reducing the respondents' payment by half.

Applications for correction become more complex when a party blurs the line between a computational error and disagreement over the tribunal's reasoning when calculating damages or interest in a particular way. This appears to be what happened in case 990817 where the claimants submitted an Article 29 application arguing, inter alia, that the starting date for the tribunal's calculation of interest owed by respondents was erroneous. According to the claimants, interest payable by the respondents should have begun to accrue on 25 April 1998 rather than the 18 August 1998 date used by the tribunal. Use of the April date would have resulted in an increase of over one million US dollars in the interest owed to the claimants. In its Addendum correcting a separate calculation, the tribunal rejected this portion of the claimants' application, pointing out that its choice of the August date was based on the terms of the parties' agreement and that the claimants' alternative reasoning, based on provisions of New York law, had already been considered and rejected by the tribunal in its final award. The claimants therefore were seeking a change in the tribunal's substantive findings in this respect rather than an Article 29 correction.

B. Interpretation

A request for interpretation is properly made when the terms of an award are so vague or confusing that a party has a genuine doubt about how the award should be [Page64:] executed. Though not defined in the Rules, the meaning of 'interpretation' in this context is fairly consistent throughout international arbitration literature. 18 It may nevertheless be tempting for a losing party to ask for interpretation even when faced with a clear award. A hypothetical losing respondent may hope that in reviewing its Article 29 application, wherein such respondent reargues the merits of its case, the tribunal may realize that the respondent's arguments were in fact more forceful than those of the claimant and therefore change the award. Unfortunately for the respondent, Article 29 was not meant to empower tribunals to change the substance of their awards. The hypothetical respondent's application would therefore be rejected in a Decision from the tribunal. 19

ICC case 881020 provides an example of a request for interpretation that the tribunal considered beyond the scope of Article 29. The respondent was in fact asking for much more than interpretation when requesting that the tribunal change one of its rulings on the basis of new 'full adversarial proceedings' on the subject. At issue was the tribunal's decision to fill a 'contractual gap' in the parties' licensing agreement by reference to the 'reasonable behavior of bona fide competent professionals'. The respondent considered that its pleadings had not foreseen this eventuality and that it should be permitted to make further submissions on the meaning of 'reasonable behaviour'. In its Decision refusing the respondent's request, the tribunal explained first that '[i]nterpretation should only be granted in case there is a need for clarification of the Award or a need to improve such a wording which would enable the parties to fully understand what the Arbitral Tribunal meant in its decision'. The tribunal went on to state that there was no need for further proceedings on the subject because the parties had already had ample opportunity to explain their positions.

While several requests for interpretation have been rejected on the same or similar grounds, it has been more common for tribunals to agree with the applying party that some portion of its award may be confusing enough to hamper easy execution. In case 1018921 the tribunal's Addendum amended the text of its final award to dispel any doubts about the time period and geographical extent of royalty payments owed by the claimant to the respondent. The claimant in case 1017222 requested that the tribunal clarify its reference to the claims over which it assumed jurisdiction and indicate which claims it was leaving to the tribunal in a parallel proceeding. The respondent objected to the claimant's request on the basis that the operative portion of the award was perfectly clear and that in issuing an Article 29 Addendum the tribunal would be offering interpretive commentary purely on its reasoning. Taking the view that that it had 'an obligation to clarify issues which do not seem clear to one of the parties', the arbitral tribunal issued an Addendum responding to the claimant's request.

It is unlikely that the tribunal in case 10172 believed that the clarification of its reasoning was a sterile exercise; even if the claimant was not in earnest, the tribunal's reasoning on jurisdiction would undoubtedly be read by, and possibly influence, the tribunal in the parallel proceeding, so the clearer the better. However, the tribunal's statement that there was 'an obligation to clarify issues', if taken broadly, conflicts with the position of the drafters of the comparable interpretation provision in the UNCITRAL Arbitration Rules, who would allow arbitrators to clarify the '"the purport of the award and the resultant obligations and rights of the parties", but not to explain further the reasons for the award'. 23 Under the ICC Rules, whether or not elaboration [Page65:] on the reasons of the award should be provided when the award's operative section or dispositif is perfectly clear is left to the discretion of the tribunal.

Interestingly, the drafters of the UNCITRAL Model Law on International Commercial Arbitration considered allowing interpretation only of the reasons for the award and not of the dispositif. 24 In the end, interpretation was restricted in a different way: limiting it to cases where the parties agree to give this power to the arbitrators, either in advance, or at the time of the request for interpretation. 25 In light of ICC experience, requiring consent of both parties at the time of interpretation seems ill-advised; such a requirement would tie the hands of arbitrators in cases like 10172 and the case discussed in the next paragraph, or whenever there is a non-participating party. 26

While application of the 1998 Rules should suffice as evidence that the parties agreed to empower the tribunal to interpret its award, arbitrators acting under the 1988 Rules have to be more careful when faced with a request to interpret. In an ICC case held in Geneva under the 1988 Rules, the tribunal's final award granted certain sums to the claimant and the respondents 'with interest'. Upon request by the claimant, the tribunal issued an Addendum clarifying how such interest should be calculated. The respondents attacked the Addendum before the Swiss Federal Supreme Court, arguing that the tribunal was functus officio after rendering its original award. 27 The Swiss judges held that although the 1988 Rules did not provide for correction or interpretation, they do not exclude it, so correction and interpretation may be available if permitted by the lex arbitri. Finding that Swiss law was the lex arbitri, and that it provides for correction and interpretation, the arbitral tribunal was found to have jurisdiction to interpret its award. Had the lex arbitri been the UNCITRAL Model Law, the result would probably have been different.

III. Reasoning

All ICC awards must provide reasoning for their conclusions28 and the same rule applies to Article 29 Addenda. 29 The Note informs tribunals that reasoned conclusions shall also be required of tribunals rendering Decisions not to correct or interpret. 30 While brief Decisions have not displeased the ICC Court, arbitrators are expected to state why an application is beyond the purview of Article 29, not just that it is. Likewise with Addenda, it is not sufficient simply to set forth the amended or additional text of the award; the reasons for the correction or interpretation should be stated.

The Court has on several occasions sent draft Decisions and Addenda back to tribunals with instructions to include a reasoned basis for each finding. 31 In case 10189, the first draft Addendum submitted for the Court's scrutiny contained only the amended text of the award. The Court considered this insufficient and returned it to the tribunal whose final text contained reasoning for each amendment. 32 The Court has also shown that arbitrators need not exaggerate the complexity of the reasoning required when faced with what they consider to be a meritless application. In case 10858, the sole arbitrator, although issuing an Addendum correcting typographical errors, rejected the portion of the respondents' application requesting interpretation stating simply that 'I have decided against interpretation because I consider that my conclusions are sufficiently reasoned and that the Award is clear on its face'. 33[Page66:]

IV. Tribunal fees

When a final award is approved by the ICC Court, the fees of the tribunal and the ICC administrative expenses are fixed and paid. Outstanding tribunal expenses are reimbursed by the Secretariat and then any remaining amount held from the advance on the costs of arbitration deposited with the ICC by the parties is returned to them. This means that when an Article 29 application relating to a final award is received, there are no funds remaining on deposit with the ICC relating to the case in question. The 1998 Rules authorize the Court to request a further deposit from the parties, if it considers this justified, to cover additional fees and expenses relating to the tribunal's work on an Addendum or Decision. 34

To the best knowledge of the author, in spite of its power to do so, the Court has only seen fit to fix a new advance on two occasions. One reason for this may be the view that if something needs to be corrected or interpreted in an award, it is the tribunal's fault and the parties should not have to pay the tribunal more than the fees already granted. If the tribunal instead issues a Decision, its rejection of the application should be quick work and should not require further payments. Alternatively, it can be argued that drafting a reasoned Decision rejecting a long, but meritless, Article 29 application is hard work and not the fault of the tribunal, which deserves some compensation. This is essentially what the tribunal in case 1088835 argued when submitting to the Court its 27-page draft Decision with a request that the Court fix a further advance for tribunal fees. 36 The Court decided not to do so, which probably indicates a preference for brief Decisions (i.e. if the award in question truly needs no correction or interpretation, the tribunal's efforts on the Article 29 application should be minimal).

It is noteworthy that the UNCITRAL Arbitration Rules, so prominent in ad hoc matters, prohibit arbitrators from charging additional fees for correction or interpretation. 37 The UNCITRAL Rules' prohibition, when combined with the ICC's reluctance, tip the balance in international commercial arbitration against this sort of payment. Arbitrators and the ICC may continue to debate this point, but tribunals would do well to expect that fees received from the ICC following approval of final awards also include payment for any future work on an Article 29 application.

V. Award of costs

If arbitration costs are claimed, ICC arbitrators are empowered to 'decide which of the parties shall bear them or in what proportion they shall be borne by the parties'. 38 Costs of the arbitration include the fees and expenses of the arbitrators, the ICC administrative expenses, the fees and expenses of any expert, and the reasonable legal and other costs incurred by the parties for the arbitration. 39 Any costs incurred by the parties in the preparation of an Article 29 application or the response thereto fall within this definition. A tribunal's decision on the costs of the arbitration must therefore dispose of all claims for costs, including those relating to an Article 29 application.

Awards of costs are commonplace in international arbitration, and even appear to be gaining acceptance in the United States, where arbitrators are beginning to abandon [Page67:] the 'American Rule'40 in international cases. 41 The ICC Court has already approved several Addenda and Decisions in which costs were awarded. In case 10820, 42 the tribunal, citing its Article 31 powers, awarded legal costs to the claimant in its Addendum, but considered that it was otherwise functus officio when it came to a claim regarding abuse of procedure introduced by the claimant in response to what the latter considered a frivolous Article 29 application from the respondent. While another tribunal may have come to a different conclusion as to whether it was functus officio in respect of the abuse of procedure claim, 43 the claimant's purpose was still served by the tribunal's award of costs in its favor.

It may be expected that, as in case 10820, if costs are awarded this will mainly be where an Article 29 application is rejected and the unsuccessful applicant is ordered to pay the other side's costs. In this context, it may be preferable to make the award of costs in an Addendum rather than a Decision, because an Addendum becomes part of the award pursuant to Article 29(3). 44 However, provided the tribunal's order is clear, the risk of enforcement problems when costs are awarded in Decisions would seem slight, as Decisions, like Addenda, are submitted for the scrutiny of the ICC Court and would be expected to possess the attributes of an award for the purposes of enforcement under applicable national law or the New York Convention.

VI. Multiple Addenda

What if an Addendum rendered pursuant to Article 29 contains an error or vague language? Does a party have any recourse? The answer is yes, because an Addendum constitutes part of the award, and awards are subject to correction and interpretation. Hence, a party can simply commence a new Article 29 procedure with respect to the Addendum in question. Given that the Addendum will have a later date than the original award, the 30-day time limit for making an Article 29 application will run from the date of receipt of the Addendum and not the date of the award. If the time limit with respect to correction or interpretation of the original award has run out, a tribunal should limit its consideration of the Article 29 application to questions relating to the Addendum.

In case 10609, 45 upon an application by the claimant, an arbitral tribunal issued an Addendum correcting a computational error in a final award. The claimant proceeded to file a second application requesting correction of the Addendum. The tribunal rejected the second application in a Decision stating that the new application 'reiterates a request upon which the Tribunal has already ruled and is therefore inadmissible'. 46 The tribunal hinted that the 30-day time limit of Article 29 and section 57(4) of the English Arbitration Act of 199647 might also bar this second application, but because the application was being rejected on other grounds, the tribunal did not rule on these questions. 48 With respect to the Article 29 time limit, provided that the second application related to a matter contained in the Addendum, there would have been no apparent impediment to the admissibility of the second application as it was submitted within 30 days of the claimant's receipt of the Addendum. The tribunal members may have considered this an issue because they thought the second application related to the original award rather than to the Addendum. [Page68:]

Contrary to an Addendum, because a Decision is not said to constitute part of the award in the Rules, it would not appear subject to an application for correction or interpretation. A party having received an unfavorable Decision will in all likelihood have exhausted its time limit for any further Article 29 application relating to the original award.

VII. Beyond Article 29

The final paragraph of the Note states: 'Where the relevant national law or court practice provides for specific situations in which an Arbitral Tribunal may render certain decisions other than corrections or interpretation regarding an Award which had been approved and notified, such situation shall be treated in the spirit of this Note.' 49 The Note therefore leaves the door open to other post-award proceedings provided that national laws or courts allow them. 50 In at least two recent cases, arbitrators have been asked to act beyond the scope of Article 29 and to base their jurisdiction on national law or a court order. The ICC Court, acting 'in the spirit of [the] Note' has adapted its procedure to accommodate these tribunals and to assure that, where appropriate, tribunal decisions would be submitted for the ICC Court's scrutiny and take the form of an ICC award.

A. National law

In case 9235, 51 within 30 days of receipt of the tribunal's final award, the claimant submitted to the ICC 'a request for clarification, correction and addition to the Final Award'. Claimant's 'addition' was a request that the tribunal rule on a claim for damages that had been pleaded, but was overlooked in the final award. The place of arbitration was Cairo, Egypt, and a legal opinion based on Egyptian law supported the claimant's position that a further award by the tribunal was permitted in this context. 52 Although rejecting certain of the claims for correction and clarification, the tribunal agreed with the claimant that it had neglected to rule on this claim in its final award. The tribunal proceeded to rule on the damages claim in a 'Decision in the legal nature of an additional award . . . to its Final Award of December 16, 2000, which shall remain in force and effect as rendered'. This was submitted for the ICC Court's scrutiny and approval, as would be any other award.

Additional awards are not an enumerated power of arbitrators under the ICC Rules, and doubts have been expressed as to whether they should be allowed as a matter of ICC policy. 53 However, additional awards as foreseen in Egyptian law54 do not alter the 'binding' nature of ICC awards, nor do they infringe the Rules' 'waiver of recourse', at least to the extent that 'waiver of recourse' is understood to mean non-appealability. 55 For its part, the tribunal in case 9235 made no mention of a conflict between the Rules and the additional award provision of the applicable Egyptian law. Had the tribunal or the ICC Court considered there to be a conflict, one might expect it to have been discussed in the tribunal's additional award.

A debate on whether to add a provision allowing additional awards to the ICC Rules would raise some of the same objections heard by the proponents of correction and interpretation prior to the adoption of the 1998 Rules: the ICC [Page69:] Court's scrutiny process is meant to prevent the need for such a provision, and such a provision may encourage improper requests (i.e. appeals on the merits). That being said, even if exceedingly rare, it is certainly preferable to allow parties having received an award where the tribunal has ruled infra petita to make a request to the tribunal as in case 9235, rather than be forced to commence proceedings before a national court or commence a new arbitration. Also, the type of party that would attempt to disguise an appeal as a request for an additional award is the same type that is already doing so in requests for correction and interpretation, so allowing additional awards should not increase the number of frivolous requests that ICC arbitrators must reject in Decisions. Perhaps an expansion of Article 29 to allow additional awards will be considered at some far-off meeting on the revision of the 1998 Rules.

Beyond additional awards, certain national laws allow tribunals to revise the substantive findings of previously rendered awards when evidence is later produced of fraud, forgery or concealment of evidence. Fraud, for example, is a basis for révision in both Swiss56 and French57 law, which have been construed to allow courts to return awards to tribunals in such circumstances. 58 Similar redress for fraud committed against the tribunal should be available in a setting aside motion under the UNCITRAL Model Law59 which provides for the return of awards to tribunals 'where appropriate and so requested by a party' and gives the arbitral tribunal an opportunity 'to take such other action as in the tribunal's opinion will eliminate the grounds for setting aside'. 60 Although it has yet to happen in the context of ICC awards rendered under the 1998 Rules, this is one of the 'relevant national law[s] or court practice[s]' that the drafters of the Note had in mind when formulating its final paragraph. 61

B. National courts

In March 2001, a US District Court62 ordered the remand of a 1994 ICC award to the sole arbitrator, finding that his award did 'not fully adjudicate an issue that had been submitted', and that he therefore had 'not exhausted his function as to that issue'. The arbitrator's award had ordered the respondent to pay prospective commissions to the claimant, but in the US enforcement action the claimant contended that the respondent had not complied with the arbitrator's order. For the District Court, clarification of amounts owed under the award required the arbitrator 'to complete his duties by applying his reasoning to the facts and [did] not reopen the merits of the case'. The respondent has objected to the reconstitution of the arbitral tribunal on various grounds including that its authority has expired, the request falls outside the original Terms of Reference, and that there are no provisions under the ICC Rules allowing for this.

For its part, the ICC Court has decided that this is a matter for the arbitral tribunal and has invited the sole arbitrator to decide on his own jurisdiction. 63 The Court's decision would therefore suggest that it does not consider that the Rules present an absolute bar to this type of action when ordered by a national court. 64[Page70:]

C. Time limits

(1) Is the limit really 30 days?

What happens if the ICC receives an application for correction or interpretation after the expiration of Article 29's 30-day time limit? One authority has argued that it would be appropriate for the Court to allow a tribunal to consider such an application if the issue needing interpretation arose in a bona fide fashion after the 30-day period. 65 In so doing, the Court would rely on its broad discretionary power under Article 35 of the Rules. 66

In a recent ICC case, the respondent submitted an application for correction and interpretation 30 days after notification of the tribunal's partial award. In accordance with the ICC Rules, the tribunal gave the claimant 15 days to provide its comments on the respondent's application. In its comments, received 50 days after notification of the award, the claimant introduced its own request for correction of an alleged computational error. The tribunal subsequently issued an Addendum accepting certain of the respondent's requested corrections, but rejecting (by a majority) the claimant's requested correction on the grounds that it was introduced after the expiry of the 30-day period laid down in Article 29.

The dissenting arbitrator objected to the majority's position, believing it not to be in the spirit of the Rules. The majority, however, found no legal basis for considering a late correction. Had the majority been sympathetic to the dissenting arbitrator's view and instead invoked Article 35 of the Rules to allow the correction, it would still remain for the ICC Court to approve this use of Article 35. It should be noted that this case had the unique feature that the claimant's late application for correction was improperly included in its otherwise timely comments on the respondent's application. If the claimant had submitted its belated request in a separate document entitled 'Article 29 Application', it is not certain that the ICC would have transmitted it to the tribunal. 67

The aforementioned case does not resolve the question as to whether Article 35 of the Rules could ever be used to extend the Article 29 time limits. It differs from the hypothetical situation contemplated by Craig, Park and Paulsson in that the claimant's suggested correction could have been discovered in the 30 days following notification of the award. In any event, relying on Article 35 is a risky proposition because it governs issues that are 'not expressly provided for' in the Rules. 68 Article 29 now expressly provides a time limit, so the ICC Court may be less flexible under the 1998 Rules than when it was filling the lacunae of the 1988 Rules. Therefore, in the absence of any agreement, national law, or national court intervention empowering a tribunal to overstep the limits set in the Rules, there can be no assurance that an application for correction or interpretation will be judged admissible by a tribunal, or the ICC Court, if submitted more than 30 days after receipt of the award. Counsel would consequently be well advised to complete a careful review of any ICC award within 30 days of receipt.

(2) When to commence annulment proceedings?

The time limits foreseen in Article 29 make it all but impossible for an application for correction or interpretation to result in the issuance of an Addendum or Decision [Page71:] within the 30 days following notification of an award. 69 In some jurisdictions, this may pose a problem for a party that wishes to await the outcome of an Article 29 proceeding before deciding whether to attempt having the award set aside in national courts. Under Swiss law, the deadline for filing a motion to set aside is 30 days from the notification of the award, 70 and the filing of an Article 29 application with the ICC could not be expected to suspend this deadline. A conservative approach might therefore call for filing both the Article 29 application with the ICC and the motion to set aside with the Swiss Federal Supreme Court within 30 days of notification of the award. In France, a motion to set aside must be brought within one month of notification of judicial recognition (ordonnance d'exequatur) of the award. 71 Therefore, contrary to the situation in Switzerland, as long as judicial recognition has not been granted, a party may wait until the conclusion of an Article 29 proceeding before deciding whether or not to attempt to set aside an award.

VIII. Conclusion

Article 29 has now been in force for over four years, during which time its correction provision has functioned well, offering a clear procedure for repairing small errors. The interpretation provision, although considered 'fraught with peril'72 by some commentators, has lead to improved clarity and enforceability of a number of ICC awards. It is true that a few parties have, innocently or not, presented appeals on the merits in the guise of Article 29 applications, but the examples of the misuse of Article 29 are heavily outnumbered by the occasions when parties have used it as intended. Ultimately, the greatest responsibility for ensuring that Article 29 is not a source of complication and delay rests with arbitrators, who should dispense quickly with frivolous requests and prevent multiple exchanges of comments from parties resulting in an unnecessary prolongation of Article 29 proceedings. 73

1
Neither the ICC International Court of Arbitration nor its Secretariat should be considered bound by any of the opinions expressed in this article, which are those of the author alone.

2
Pursuant to Article 27 of the ICC Rules, tribunals must submit draft awards to the ICC Court, which may lay down modifications of form and draw the tribunal's attention to points of substance.

3
Arts. 35 and 36 UNCITRAL Arbitration Rules; Art. 30 AAA International Arbitration Rules; see Y. Derains & E.A. Schwartz, A Guide to the New ICC Rules of Arbitration (The Hague: Kluwer Law International, 1998) at 298-299.

4
Ibid.; Article 26 of the 1988 Rules and Article 35 of the 1998 Rules state: 'In all matters not expressly provided for in these Rules, the Court and the Arbitral Tribunal shall act in the spirit of these Rules and shall make every effort to make sure that the Award is enforceable at law.'

5
Ibid.

6
See W. Kühn, 'Rectification and Interpretation of Arbitral Awards', (1996) 7:2 ICC ICArb. Bull. 78 at 82-83.

7
Nine Article 29 applications for correction and/or interpretation were received in 1999, 28 in 2000, and 38 in 2001; the ICC Court approved 269 awards in 1999, 334 in 2000, and 341 in 2001. Although precise statistics are not available with respect to prior years, members of the ICC Court Secretariat consider that far fewer requests of this nature were submitted prior to the introduction of the 1998 Rules.

8
Pursuant to the Note, if the tribunal decides to correct or interpret an award, this shall be done in the form of an 'Addendum'; if the tribunal arrives at the conclusion that an award does not need to be corrected or interpreted, its decision shall be set out in a document entitled 'Decision'. For the full text of the Note, see (1999) 10:2 ICC ICArb. Bull. 4.The issuance of notes by the ICC Court Secretariat is provided for in Article 5 of Appendix II of the Rules: 'The Secretariat may, with the approval of the Court, issue notes . . . as necessary for the proper conduct of the arbitral proceedings.'

9
In case 7307 (1988 Rules), the claimant, relying on French law, requested revision of a partial award alleging that the respondent was guilty of fraud in the production of evidence. The tribunal issued a procedural order containing a décision rejecting the request, which was set aside by the Paris Court of Appeal. The French court considered that the procedural order was in the nature of an award, but was improperly rendered because it had not been scrutinized and approved by the ICC Court, as required by the ICC Rules. See A. Carlevaris, 'La qualification des décisions des tribunaux arbitraux dans le Règlement d'arbitrage CCI et dans la jurisprudence française', La Gazette du Palais (1-2 December 2000) 11/2061.

10
See discussion of interpretation, part II.B below.

11
During the period from entry into force of the 1998 Rules on 1 January 1998, to 30 June 2002.

12
See W.L. Craig, W.W. Park & J. Paulsson, International Chamber of Commerce Arbitration, 3d ed. (Oceana Publications/ICC Publishing, 2000) at 408.

13
With the possible exception of claims arising from the Article 29 procedure itself. See discussion of award of costs, part V below.

14
Of the 38 Article 29 applications submitted to the ICC in 2001, 11 resulted in Decisions.

15
See Appendix hereinafter at 86ff.

16
See Appendix hereinafter at 76ff.

17
See Appendix hereinafter at 77ff.

18
'The interpretation of an arbitral award is only really helpful where the ruling . . . is so ambiguous that the parties could legitimately disagree on its meaning.' In E. Gaillard & J. Savage, eds., Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999) at 776.

19
As discussed in part V below, this party also risks an award of costs against it.

20
See Appendix hereinafter at 72ff.

21
See Appendix hereinafter at 81ff.

22
See Appendix hereinafter at 79ff.

23
See S.A. Baker & M.D. Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (Deventer: Kluwer Law & Taxation, 1992) at 192.

24
See H.M. Holtzmann & J.E. Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (Deventer: Kluwer 1989) at 891.

25
Article 33(1)(b) of the UNCITRAL Model Law provides: 'if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.'

26
Given the choice of fighting enforcement of an unclear award, or fighting enforcement of an award that has been clarified through interpretation, some losing parties can be expected to choose the former.

27
Tribunal fédéral, 1re cour civ., 2 November 2000, [2001] ASA Bulletin 88.

28
Article 25(2) provides that an award 'shall state the reasons upon which it is based'.

29
Article 29(3) provides that the provisions of Article 25 shall also apply to Addenda.

30
The Note states: 'An Addendum or a Decision shall contain the reasons upon which it is based . . .'

31
The Note requires both Addenda and Decisions to be submitted for the Court's scrutiny as provided in Article 27.

32
See Appendix hereinafter at 81ff.

33
Addendum of March 2002 [unpublished].

34
Article 2(7) of Appendix III of the Rules allows the ICC Court to request that such funds be deposited prior to transmission of the application for correction or interpretation to the tribunal. There is no provision, however, for the ICC to charge any further administrative fees for work done by the Court and Secretariat in connection with Article 29 applications.

35
See Appendix hereinafter at 90ff.

36
Pursuant to the Note, in 'exceptional circumstances' the Court may fix an advance at the time of scrutiny of the Addendum or Decision if one was not fixed at the time of receipt of the application.

37
Article 40(4) of the UNCITRAL Arbitration Rules provides: 'No additional fees may be charged by an arbitral tribunal for interpretation or correction of its award . . .'

38
Article 31(3)

39
Article 31(1)

40
i.e. each party bears its own costs and legal fees.

41
Murray L. Smith, 'Costs in International Arbitration', Dispute Resolution Journal (February-April 2001) 32; a sample of recent ICC awards still shows the occasional reluctance of US arbitrators to award costs.

42
See Appendix hereinafter at 88ff.

43
When compared with applying to national courts or commencing a new arbitration, the existing tribunal would seem the most pragmatic choice for dealing with an abuse of procedure claim arising from an Article 29 application.

44
This was done in case 10888; see Appendix hereinafter at 90ff.

45
See Appendix hereinafter at 87ff.

46
Reiteration of the same request does not in itself appear a valid ground for rejecting the second application. For example, if a tribunal gets the same calculation wrong in the award and in the Addendum, a party should be able to raise the point again. What the tribunal members in 10609 likely meant is that the claimant's request had already been fully considered and properly addressed in the Addendum, so no further correction was necessary.

47
Section 57(4) states that any application for the exercise of the powers of the arbitral tribunal to correct an award must be made within 28 days of the date of the award or such longer period as the parties may agree.

48
It is doubtful that the English Arbitration Act of 1996 could have acted as a bar to the claimant's request. Section 57(1) of the Act states: 'The parties are free to agree on the powers of the tribunal to correct an award or make an additional award.' Hence, it is the ICC Rules that dictate the tribunal's power in this context rather than the Act's default provisions.

49
The Note also directs arbitrators to assure that Article 29 does not conflict with mandatory rules of law at the place of arbitration.

50
This is the same approach that reigned under the 1988 Rules. See W. Kühn, supra note 6 at 78-79.

51
See Appendix hereinafter at 73ff. The arbitral tribunal's decision in this matter does not fit within the definitions of 'Addendum' and 'Decision' given in the Note because it was rendered as an additional award rather than a correction or interpretation; see supra note 8. The tribunal's use of the word 'Decision' would appear to reflect Egyptian law rather than Article 29 terminology; see Article 51(2) of Egyptian Law No. 27, infra note 51.

52
Article 51 of Egyptian Law No. 27 provides: '1. Either party to the arbitration may, even after the expiration of the arbitration period, request the arbitration panel, within the thirty days following the reception of the arbitral award, to make an additional award as to claims presented in the arbitral proceedings but omitted in the award. Such request must be notified to the other party before submission to the arbitral panel. 2. The arbitral panel shall make its decision within sixty days from submission of the request, and it may extend this period for a further thirty days if it considers this to be necessary.'

53
See W.L. Craig, W.W. Park & J. Paulsson, supra note 12 at 535, entertaining the possibility that the Rules' silence on additional awards could be construed as an 'agreement otherwise' when a national arbitration statute makes additional awards available 'unless otherwise agreed'.

54
Similar provisions are found in the English Arbitration Act (s. 57), the UNCITRAL Arbitration Rules (Art. 37), and the UNCITRAL Model Law (Art. 33).

55
Article 28(6) of the 1998 Rules provides that '[e]very Award shall be binding on the parties . . .' and that the parties '. . . shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.' The differences between the 1988 Rules and the 1998 Rules on this subject do not appear material for the purposes of this discussion. See Y. Derains & E.A. Schwartz, supra note 3 at 297.

56
The Swiss Federal Supreme Court outlined its powers in this respect when considering the révision of a non-ICC award in 1999. See Sovereign Participations International SA v. Chadmore Developments Limited, (2001) XXVI Y.B. Comm. Arb. 299 at 301ff.

57
The Court of Cassation allowed for révision in Cass. Civ. 1re, 25 May 1992, Fougerolle v. Procofrance, [1992] J.D.I. 974.

58
This type of recourse is not deemed waived by agreement to the ICC Rules. Under Swiss law, a further agreement is needed to exclude révision. See W.L. Craig, W.W. Park & J. Paulsson, supra note 12 at 586. In France, the public policy ground for setting aside (Art. 1502(5) Nouveau Code de procédure civile), which cannot be contractually excluded, has been relied upon for recourse against fraud. See W.L. Craig, W.W. Park & J. Paulsson, supra note 12 at 557; Ph. Fouchard, E. Gaillard & B. Goldman supra note 18 at 919920

59
Although there is no explicit reference to fraud in the Model Law, the consensus among the drafters was that fraud is covered by the public policy ground for setting aside (Art. 34 (2)(b)(ii)). See H.M. Holtzmann & J.E. Neuhaus, supra note 24 at 912914.

60
Art. 34(4) UNCITRAL Model Law on International Commercial Arbitration.

61
The drafters were thinking of ICC case 7307; see supra note 9.

62
M & C Corp. v. Erwin Behr GmbH & Co., No. 91-74110 (E.D. Mich., 30 March 2001), order of remand to arbitrator; the respondent is appealing the District Court's remand order: M & C Corp. v. Erwin Behr Gmbh & Co., No. 01-1949 (6th Cir., 11 March 2002), order staying remand pending appeal.

63
This approach is analogous to the Court's procedure under Article 6(2) of the Rules whereby the Court, once satisfied prima facie that an arbitration agreement may exist, leaves any decision on the arbitral tribunal's jurisdiction to the tribunal.

64
It is unlikely that the ICC Court would have requested that the arbitrator act in the absence of the US court's remand. See Mealey's International Arbitration Report, vol. 15, no. 3 (March 2000) at 12, for a US federal court remand authorizing an arbitrator to clarify his AAA award when the arbitration institution would have otherwise considered that his authority had ceased.

65
W.L. Craig, W.W. Park & J. Paulsson, supra note 12 at 408.

66
Ibid.

67
In a ruling prior to the introduction of Article 29, the ICC Court refused to transmit to the sole arbitrator a request for interpretation received six months after the date of the award. In that case, however, the Court was swayed less by the party's delay in submitting the request than by the fact that the request appeared to relate to a new issue, not mentioned in the Terms of Reference or the award. See W. Kühn supra, note 6 at 82.

68
See Article 35, supra note 4; see also discussion in Y. Derains & E.A. Schwartz, supra note 3 at 353.

69
Article 29 allows up to 30 days for submission of the application, 30 days for comments from the other party, and 30 days for the tribunal to submit its draft Addendum or Decision to the ICC Court. Many Addenda and Decisions will therefore be received over 90 days from the date of notification of the award.

70
See S.V. Berti & A.K. Schnyder, 'Article 191 of the Federal Statute on Private International Law (PILS)' in S.V. Berti, ed., H. Honsell, N.P. Vogt & A.K. Schnyder, gen. eds. International Arbitration in Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute (The Hague: Kluwer, 2000) 589 at 591, para. 9.

71
Art. 1505 Nouveau Code de procédure civile; see M. de Boisséson, Droit français de l'arbitrage interne et international (GLN, 1990) no. 793.

72
A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration, 3d ed. (London: Sweet & Maxwell, 1999) at 412 (8-97).

73
Pursuant to Article 29(2), the other party should be granted only one opportunity to comment on the application prior to the tribunal's decision.