1. ICC Rules

The possibility of correction and interpretation of an ICC arbitral award is provided for in Article 29 of the 1998 Rules of Arbitration. As pointed out by Derains and Schwartz, the previous Rules did not contain any provision in this respect because 'it was commonly assumed that the scrutiny of draft awards by the Court should make this unnecessary'. 1

The practice, however, showed that, despite the care and attention given by arbitral tribunals and the ICC Court, errors made in awards were sometimes only detected later-in some instances not until the enforcement stage.

Applying the principle errando corrigitur error, the ICC Court decided in a few cases to correct such errors-even in the absence of any specific provision to this effect in its own rules-so as to help make sure the award would be enforceable, as required by Article 26 of the 1988 Rules. 2

2. Rules of other institutions

The rules of several other institutions also allow for the possibility of the correcting errors in awards, e.g. the American Arbitration Association in Article 30 of its International Arbitration Rules; the São Paulo Stock Exchange (BOVESPA), Article 9 (8); the Brazilian EuroChambers, Article 7 (9); the Mediation and Arbitration Chamber of Rio de Janeiro, Article 8 (8); the InterAmerican Conciliation and Arbitration Commission (IACAC), Article 33; the German Institution of Arbitration (DIS), Section 37; the International Centre[Page285:]

for Settlement of Investment Disputes (ICSID) in Article 51 of the Washington Convention; the London Court of International Arbitration (LCIA), Article 27; the São Paulo Arbitral Tribunal (TASP), Article 13 (3); the United Nations Commission on International Trade Law (UNCITRAL) in Article 36 of its Arbitration Rules; and the World Intellectual Property Organization (WIPO) in Article 66 of its Arbitration Rules.

3. National legislation

The correction of errors is also dealt with in some national legislation. In Brazil, for instance, the Code of Civil Procedure allows judges to correct clerical errors or miscalculations ex officio or at the request of any of the parties (Article 463, I). It is also possible for any of the parties to make an appeal-called embargos de declaração-within five days of a decision (Article 535), if the latter is obscure, contradictory or has omitted a matter that should have been covered. The appeal is decided by the same judicial authority that issued the original decision.

A similar situation obtains in France. Article 1475 of the French New Code of Civil Procedure provides not only for the correction of clerical errors and for the interpretation of awards but also for the possibility of an additional award:

L'arbitre a néanmoins le pouvoir d'interpréter la sentence, de réparer les erreurs et omissions matérielles qui l'affectent et de la compléter lorsqu'il a omis de statuer sur un chef de demande.

The Argentinian Code of Civil and Commercial Procedure, for its part, allows for the correction of clerical errors, obscure concepts and omissions by judges and arbitrators. This is done by way of an appeal called recurso de aclaratoria.

As for the United States of America, section 11 of the Federal Arbitration Act authorizes the federal district court where an award was made to modify or correct the award in certain cases, but does not say whether the arbitral tribunal is entitled to do so. However, the New York Civil Practice Law and Rules, which set forth the arbitration law of the State of New York, state as follows in section 7511 (c) entitled 'Vacating or modifying award':

Grounds for modifying. The court shall modify the award if:

1. there was a miscalculation of figures or a mistake in the description ofany person, thing or property referred to in the award; or [Page286:]

2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

3. the award is imperfect in a matter of form, not affecting the merits of the controversy.

Given that arbitration is a contractual matter, as is much emphasized by US courts, it can be expected that they would uphold the validity of a provision in the parties' arbitration agreement, either directly or in the institutional rules to which the agreement refers, giving the arbitrators authority to modify or correct the award on stated grounds. 3

4. Genesis of Article 29 of the 1998 ICC Rules of Arbitration

It is useful to recall the genesis of Article 29 of the 1998 Rules of Arbitration. In his report of the meeting of the ICC Commission on International Arbitration held on 20 April 1995, the then Secretary of the Commission, Dominique Hascher, made the following comments: 4

Il a semblé à beaucoup de spécialistes de l'arbitrage que certains aménagements devaient être apportés au Règlement de la Cour, en vue de répondre à de nouveaux défis ou à des difficultés récemment apparues dans la gestion de l'arbitrage.

A la suite d'une délibération du Bureau de la Cour Internationale d'Arbitrage de la CCI, il a été entendu que ces clarifications seraient présentées sous la forme de simple additions au Règlement actuel, dont le reste ne sera pas modifié.

Les membres de la Cour ont été invites à formuler des observations sur l'avant-projet et le projet ci-joint a donc été réaménagé, compte tenu de ces observations, pour être soumis à la Commission de l'Arbitrage International, en vue de sa réunion du 20 avril prochain.

It was suggested that the following sub-section be added to Article 24 of the 1988 Rules: 5[Page287:]

Any application for the correction of a clerical, computational or typographical error in an award, or for its interpretation, must be communicated to the Secretariat within thirty days of the notification of such award to the parties. The Secretariat shall send a copy of such application to the other party and, within thirty days, to the arbitrator. The decision of the arbitrator is to be submitted to the Court in draft form, within a timelimit of thirty days, for scrutiny in accordance with Article 21.

N.B. This provision responds to a practical need, while subjecting requests for correction or interpretation to specific requirements. The involvement of the Court in the approval of awards means that it should not be possible for arbitrators to add to their awards matters that they might have forgotten.

The minutes of the meeting of 19 October 1995 show that Alain Plantey, who was at the time Chairman of the ICC Court, informed the Commission that the Bureau of the Court6 and the Court itself had decided that the correction and interpretation of awards was one of the three most urgent changes in the Rules. 7

Subsequently, a working party chaired by Yves Derains was constituted for revision of the ICC Rules of Arbitration. It decided that a new set of rules should be drafted, as opposed to simply modifying the existing rules.

In a note to ICC national committees, dated 28 December 1995, the Commission on International Arbitration informed them that the revision would aim to shorten delays, reduce unpredictability, rationalize costs and improve any defective rules, while respecting the fundamental characteristics of ICC arbitration and ensuring that the guarantees to which users are accustomed are preserved. 8 Attached to the note was a draft of the suggested provision on the correction and interpretation of awards and on additional awards relating to claims presented in the Terms of Reference or declared admissible pursuant to Article 16 but not dealt with in the award. 9

A draft of the revised Rules including the abovementioned provision on the correction and interpretation of awards but without any reference to additional award was circulated was to national committees. There were objections to the time limit of thirty days, considered too short by some committees. The Italian[Page288:]

committee expressed concern about the possible negative consequences of the interpretation of awards, while the English committee suggested that an application should be granted only if presented by all parties. The Austrian committee made an interesting suggestion, which in the end did not prevail: the Court should be allowed to fix an advance on costs in order 'to limit the number of frivolous applications for correction or interpretation of awards'. The US committee expressed the concern of some of its members that the suggested provision on correction and interpretation (Article 30 of the draft) would delay the enforcement of the awards by creating an appeallike procedure that 'would be used as a matter of course by losing parties'. Given these concerns and the lack of information on the likely frequency with which the proposed provisions on interpretation would apply to future cases, 'several US members suggest deleting from Article 30 any reference to interpretation, and leaving questions of interpretation to be decided on a casebycase basis'.

At the Commission meeting of 3 December 1996, after a rather long discussion, it was decided by a majority (nineteen votes against thirteen) that the possibility of an application for interpretation of an award would be maintained. 10 Thereafter, the national committees were again heard on the final draft, which was approved by the ICC Council on 8 April 1997 at its meeting held in Shanghai, 11 and came into force on 1 January 1998.

Thus, the suggestion to include in the ICC Rules of Arbitration the possibility of correcting and interpreting awards was upheld, whereas the idea of allowing an addition to the award to cover an omission was rejected.

5. Correction of awards

As observed by Craig, Park and Paulsson, 12 the correction of awards was not controversial. It had been permitted in exceptional circumstances even under the former Rules and, as already pointed out, most modern international rules contain provisions in this respect.

Clerical, computational and typographical errors and those of a similar nature are often committed in awards due to human fallibility. In our opinion, they should be corrected at any time, even beyond the thirtyday term provided for[Page289:]

in Article 29 of the 1998 ICC Rules of Arbitration, for they are sometimes only detected later, not uncommonly at the enforcement stage. In this case, it will be for the competent court (if the losing party does not voluntarily comply with the award) to correct the error so as to permit enforcement of the award as the tribunal would have decided if it had been able to remedy its error.

Prior to the 1998 Rules, the ICC Court had occasion to decide that the arbitral tribunal was empowered to interpret an award and correct clerical errors and omissions in case 6653. 13 In his comment on this case, JeanJacques Arnaldez wrote as follows:

La présente sentence donne l'occasion de constater que, dans le cadre d'un arbitrage soumis au Règlement d'arbitrage de la CCI, un arbitre peut, sous certaines conditions, interpréter sa sentence finale et, en cas de besoin, réparer les erreurs ou omissions qui l'affectent. Si aucune disposition à cet égard ne figure dans le Règlement, son silence ne saurait être interprété comme un refus total de toute interprétation ou correction. Certes, l'article 24 précise que « la sentence arbitrale est définitive », mais cette disposition est essentiellement destinée à écarter tout appel, quelle que soit la voie de recours en cause. Quant à l'intervention de la Cour dans le cadre de l'article 21, elle ne saurait exclure ultérieurement une telle possibilité d'interprétation ou de correction, l'article 26 lui prescrivant de faire tous ses efforts pour que la sentence soit susceptible de sanction légale. De fait, aux termes de l'article 11, la réponse peut dépendre, dans le silence du Règlement, du choix des règles de procédure « que les parties ou à défaut l'arbitre déterminent en se référant ou non à une loi interne de procédure applicable à l'arbitrage ». Dès lors que ces règles autorisent l'arbitre à interpréter ou corriger sa sentence, il devient concevable que, par le biais de l'article 11 du Règlement, ces règles puissent recevoir application.

A l'évidence, le contrôle de l'article 21 du Règlement est destiné à éviter le renvoi à l'arbitre d'une sentence, après son prononcé. L'approbation des projets de sentence n'a pas justifié, jusqu'à présent, la nécessité de dispositions particulières pour permettre à l'arbitre d'interpréter ou de rectifier les erreurs ou omissions purement matérielles. Toutefois, ce qui peut apparaître clair et non ambigu tant à l'arbitre qu'à la Cour, lors du contrôle de l'article 21, peut ne pas l'être pour les parties. Or, la sentence est avant tout destinée aux parties et doit pouvoir être exécutée spontanément. Aussi, certains droits de l'arbitrage prévoient la possibilité pour l'arbitre d'interpréter la décision ou de corriger des erreurs ou omissions matérielles. [Page290:]

Under the 1998 Rules, the ICC Court has approved the correction of an award by an arbitral tribunal that was requested to indicate the precise date from which interest would be due. Other examples of clerical errors include names, numbers, dates, amounts of indemnification for losses and damages, interest rates and references to the timely submission of briefs by parties.

6. Interpretation of awards

The interpretation of awards, also permitted by Article 29 of the 1998 ICC Rules of Arbitration, is a controversial matter. 14 Some other institutions accept it-e.g. UNCITRAL (Article 35 of its Arbitration Rules), AAA International (Article 30(1) of its International Arbitration Rules), IACAC (Article 32), ICSID (Article 51 of the Washington Convention) and DIS (Section 37)--whereas others, such as LCIA and WIPO do not.

Within ICC, disagreement over this point arose in the context of the preparatory work done by the working party entrusted with the task of drawing up new Rules incorporating the changes recommended by the ICC Court and its Bureau. As explained above, some national committees and lawyers strongly objected to allowing applications for the interpretation of awards, on the grounds that they 'could be used as a weapon for confusion and delay in the hands of a party disappointed by the outcome of the arbitral proceedings as reflected in the arbitral award'. 15

Shortly after the Rules came into force the Secretariat of the ICC Court prepared a note concerning both the interpretation and correction of awards, 16 explaining that the acceptance by the arbitral tribunal of a request to that effect should take the form of an Addendum, whereas the refusal of such a request should take the form of a Decision. The Secretariat made it clear that Addenda and Decisions have to be reasoned and, before being signed, must be submitted to the ICC Court for scrutiny, just like awards.

Article 29 (2), which deals with the interpretation of an award, does not define what it actually meant by interpretation. 17 However, this would seem[Page291:]

unnecessary and even undesirable-omnis definitio periculosa est-inasmuch as it limits the flexibility of a provision. Definitions should actually be left to legal writers and jurisprudence. As far as we have been able to ascertain, applications for the interpretation of awards have not been numerous during the seven years since the 1998 ICC Rules of Arbitration came into force. This would seem to reflect their infrequency in international arbitration practice in general. Derains and Schwartz note, for example, that in 1996 the IranUnited States Claims Tribunal had never granted a request for the interpretation of an award, notwithstanding its power to do so under Article 35 of its rules, which are based on the UNCITRAL Rules. 18

It goes without saying that the application for interpretation must be submitted to the same arbitral tribunal that rendered the award. It may happen, however, that in the meantime the sole arbitrator or one of arbitrators in a threemember tribunal has fallen ill, died or decided to resign, in which case it will be necessary to reconstitute the tribunal to handle the application. This may lead to problems as different kinds of interpretation are possible. The new tribunal may, for instance, give a literal rather than a logical or teleological interpretation. In order to avoid problems of this nature it would be desirable for arbitral tribunals to be extremely rigorous in examining applications for the interpretation of[Page292:] awards, which in most of the cases are used for dilatory purposes.

An interesting question is whether it is possible to apply for the correction and interpretation of an Addendum in accordance with Article 29 of the ICC Rules of Arbitration, if it contains errors or ambiguities. We entirely share the opinion expressed by Brooks W. Daly19 that the answer should be in the affirmative. Nevertheless, there is no reason to admit either in respect of a Decision, because it does not involve any change to the award.

7. Fees and expenses

Another controversial matter dealt with by the working party created by the ICC Commission on International Arbitration to revise the 1988 Rules was whether arbitral tribunal should be entitled to additional fees and reimbursement of expenses for dealing with applications for the correction or interpretation of

awards. The working party's response was that '[i]f the need for an Award's correction or interpretation is attributable to the Arbitral Tribunal's own negligence, there would not appear to be any legitimate reason why it should receive additional compensation for repairing the damage done'. 20

Nevertheless, as also stressed by Derains and Schwartz, the Court has provided in Article 2(7) of Appendix III to the Rules, which concerns arbitration cost and fees, that it may fix an advance to cover additional fees and expenses of the arbitral tribunal in appropriate cases under Article 29(2) of the Rules. 21 Thus, if and when necessary, the tribunal will be reimbursed as to the expenses incurred and may even receive fees for the work performed if the demand for correction and/or interpretation is turned down due to lack of any error or misstatement on the part of the tribunal.

8. Time limit

Article 29(2) of the 1998 Rules also deals with the time limit for presenting an application for correction or interpretation of an award, which is thirty days from the date of receipt of the award by the party making the application. This point was discussed when the Rules were being revised. The Swiss national committee, for instance, considered the period too short, especially as difficulties over the interpretation of awards often do not arise until they are being enforced. It therefore suggested that the thirtyday term run from the time when a difference emerges in the parties' interpretation. Notwithstanding the reasonableness of this position, the final version of Article 29(2) did not depart from the draft prepared by the working party, which calls for parties to exercise great care so as to quickly detect any errors in an award that might cause problems for enforcement and anything that might call for clarification by the tribunal.

9. Is an addition to the award possible?

During the drafting of the 1998 Rules consideration was given to the possibility of introducing a provision enabling the arbitral tribunal, if requested by one of the parties, to make an addition to the award dealing with an issue mentioned in the Terms of Reference but overlooked in the award. Provisions to that effect[Page293:]

exist in the rules of other institutions such as AAA (Article 30 of its International Arbitration Rules), DIS (Section 37), LCIA (Article 27.3), UNCITRAL (Article 37 of its Arbitration Rules) and WIPO (Article 66 (c)). Article 27.3 of the LCIA Rules, for instance, refers to 'claims or counterclaims presented in the arbitration but not determined in any award'.

Richard W. Hulbert, member of the ICC Court at the time (1996), strongly objected to the idea: 22

Additional awards simply should not be necessary, if scrutiny does what it is supposed to do. Oversight as to clerical errors is understandable, but if the Terms of Reference have done their job, scrutiny must be truly incompetent to overlook an issue submitted to the arbitrator but left undecided.

In the end, the suggestion was not accepted, so there is no specific provision in the 1998 Rules dealing with the problem. It is indeed the task of the ICC Court, when undertaking the scrutiny that is one of the hallmarks of ICC arbitration, to check whether all claims and counterclaims mentioned in the Terms of Reference have been properly decided in the award. If not, the Arbitral Tribunal will be invited to make any correction which, in the exercise of their liberty and independence, the arbitrators consider befitting. As noted by Derains and Schwartz, 23 the scrutiny process was the only reason expressed for excluding the possibility of making additional awards and it would appear to be the reason why such a possibility was rejected by the working party.

We respectfully disagree with this position, which is based upon the assumption that the scrutiny process of the ICC Court never fails. Although many jurists are involved in this process (the Secretary General and the Deputy Secretary General, the Counsel in charge of the case, the Court member who acts as rapporteur, and the Court itself), it is not impossible, due to human fallibility, that an award contains an error or omission affecting its enforcement. Although this very seldom happens, it would be preferable, in our opinion, that the Rules contain a specific provision in this regard. We therefore fully endorse the position taken by Fouchard, Gaillard and Goldman: 24[Page294:]

In some cases, the arbitral tribunal fails to decide one of the heads of claim. This situation is not to be confused with that where the tribunal does not respond to all the allegations, or even all the arguments put forward by the parties. A failure to decide on certain heads of claim is sometimes easy to remedy, where the procedural law or the arbitration rules allow a party to seek an additional award from the arbitral tribunal in such circumstances. Such a mechanism is found in Belgian law (Art. 1708 of the Judicial Code), the UNCITRAL Model Law (Art. 33 (3)), the 1986 Netherlands Arbitration Act (Art. 1061 of the Code of Civil Procedure), the 1994 Italian arbitration statute (Art. 826 of the Code of Civil Procedure), the 1996 English Arbitration Act (Sec. 57(3)(b)), the 1997 German Act (Art. 1058 (1)(3) of the ZPO) and the 1999 Swedish Arbitration Act (Sec. 32).

In addition, the UNCITRAL Arbitration Rules (Art. 37), the AAA International Arbitration Rules (Art. 30(1)), the LCIA Rules (Art. 27.3) and the ICSID Rules all contain provisions to that effect. This is not the case of the 1998 ICC Rules, where the issue was discussed at the drafting stage and the proposal was ultimately rejected.

Where there is no mechanism enabling the arbitrators to make an additional award, their failure to decide one of the heads of claim will be a ground on which the award may be set aside.

As these eminent authors observed, if there is no mechanism allowing an additional award to be rendered to cure an omission, the result might be the annulment of the defective award.

In our opinion, although the Rules are silent as to the possibility of an additional award, it would be possible to remedy an omission with respect to a claim or counterclaim by interpreting the expression 'or any errors of similar nature' in Article 29 of the Rules constructively as including errors consisting in omissions, without any need for an additional award.

It is interesting how the Brazilian Supreme Court has addressed the omission of a decision on issues requiring to be dealt with according to the claims made by the parties in a lawsuit. It has consistently decided that omissions of this kind must be corrected even if they concern the heart of the matter, i.e. the substance of the decision.

The leading case, according to Theotônio Negrão, 25 is the unanimous decision rendered on 14 April 1998 upon the Writ of Error no. 207.9286. The former[Page295:]

Chief Justice Sepúlveda Pertence found that the embargos de declaração appeal (which is tried by the same court that rendered the appealed decision) for correction of a decision alleged to be based on a mistaken premise should be allowed, the court that rendered the decision being empowered to modify it whenever correction of the premise affects the result of the trial.

The Superior Court of Justice, which, according to the October 1988 Brazilian Constitution, is the highest federal court for nonconstitutional matters, likewise held in Writ of Error no. 15.569 that the embargos de declaração appeal can lead to modification of the merits of the decision rendered if such modification is necessary to remedy an omission or expunge a contradiction. 26

We believe, mutatis mutandis, that in an ICC arbitration the arbitral tribunal's omission in respect of a claim or counterclaim mentioned in the Terms of Reference can be remedied through a flexible interpretation of Article 29 of the ICC Rules of Arbitration, so as to prevent the award from being set aside by a competent court, and that in curing the omission it may even be necessary for the tribunal to modify the substance of its award. [Page296:]

1
Y. Derains & E.A. Schwartz, A Guide to the New ICC Rules of Arbitration (Kluwer Law International, 1998) at 298.

2
'In all matters not expressly provided for in these Rules, the International Court of Arbitration and the arbitrator shall act in the spirit of these Rules and shall make every effort to make sure that the award is enforceable at law.'This provision corresponds to Article 35 of the current Rules.

3
Information provided by Richard W. Hulbert, former member of the ICC International Court of Arbitration.

4
ICC document 420/338

5
Ibid.

6
The Bureau comprises the following officers of the Court: the Chairman, the ViceChairman, the Secretary General, the Deputy Secretary General and the General Counsel.

7
ICC document 420/343.

8
ICC document 420/344.

9
Ibid.

10
Comments of the ICC national committees on 29 November, 1996.

11
Document nº 420/355.

12
W.L. Craig, W.W. Park, J. Paulson, Annotated Guide to the 1998 ICC Arbitration Rules (Oceana/ICC Publishing, 1998) at 158.

13
Extracts from the award are reproduced in J.J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (Kluwer Law International, 1997) at 525-529 (Annot. Arnaldez).

14
W.L. Craig, W.W. Park & J. Paulson, supra note 12 at 159.

15
Ibid.

16
'Note of the Secretariat of the International Court of Arbitration of the International Chamber of Commerce regarding Correction and Interpretation of Arbitral Awards' (1999) 10:2 ICC ICArb. Bull. 4.

17
Y. Derains & E.A. Schwartz, supra note 1 at 301.

18
Ibid. at 301.

19
B.W. Daly, 'Correction and Interpretation of Arbitral Awards under the ICC Rules of Arbitration' (2002) 13:1 ICC ICArb. Bull. 61.

20
Y. Derains & E.A. Schwartz, supra note 1 at 301.

21
Ibid.

22
Annex to ICC document 420/347.

23
Y. Derains & E.A. Schwartz, supra note 1 at 299.

24
E. Gaillard & J. Savage, eds., Fouchard, Gaillard, Goldman On International Arbitration (TheHague: Kluwer Law International, 1999) at 778-79, para. 1417.

25
T. Negrão, Código de Processo Civil e Legislação Complementar (Saraiva, 2002) at 599.

26
Ibid. at 605.