1. Time and again we hear that Article 35 of the ICC Rules of Arbitration provides that an arbitral tribunal must 'make every effort to make sure that the Award is enforceable at law'. 1 It does not say that at all. Article 35 reads as follows:

General Rule 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.

This is about gapfilling in the ICC Rules. One cannot simply ignore the first half of the provision and thereby change its meaning. This is a trick not worthy of a selfrespecting lawyer. 2

2. But, we are told, the obligation to render an enforceable award exists all the same. Well, not exactly. An arbitral tribunal's primary objective is to produce an award that is valid and enforceable in the jurisdiction where it is rendered. If it is valid and enforceable elsewhere, so much the better. This should not, however, be the arbitral tribunal's primary concern, but is rather a matter for the parties, and others, to worry about.

3. To produce an enforceable award is the object of the entire arbitration system, and it is therefore entirely reasonable that Article 35 of the ICC Rules should refer to this overall goal. However, the achievement of this goal does not depend on the arbitral tribunal alone. International commercial arbitration is a complex system. Let us present the framework within which the activity of the arbitral tribunal is set.

4. Anarbitral institution can build trust from the very start by being responsive and courteous to the parties. The Secretariat of the ICC International Court of Arbitration is particularly good at this. [Page429:]

5. An arbitral institution plays an important role in appointing suitable arbitrators. It is difficult for the ICC Court and its Secretariat to fulfil this role if ICC national committees look upon it as the distribution of favours.

6. Arbitral institutions-particularly the ICC Court and its Secretariat- exercise quality control both at the end of the process and, ideally, along the way. The aim is to attain sufficient quality in all awards, not perfection in a few cases. Sometimes, the ICC Court and its Secretariat perform substantial remedial work.

7. In the proceedings themselves the arbitral tribunal should build trust from the very start. The ICC requirement of Terms of Reference provides an excellent opportunity to introduce the process to parties who are perhaps not yet familiar with ICC arbitration and for the participants to come together. To avoid such a meeting may well be pennywise but poundfoolish.

8. How can an arbitral tribunal write an award that is not likely to be set aside in the country of the seat of the arbitration? The award must firstly look professional. Many arbitrators tend to sneer at the work performed by the ICC Secretariat correcting typing errors, improving spelling and recalculating amounts. But if the arbitral tribunal does not do this, who should? Certainly not State judges or their underlings, who are likely to be jealous of arbitrators who, in their view, are earning easy money. Let us not forget that people check and correct what they can, and if they can find something wrong with the typing or the spelling, they will.

9. State courts have a tendency to focus on the law. It should therefore be made easy for State judges to see that 'their'law has been complied with. It is surprising how many awards-including ICC awards-fail to state where the seat of the arbitration is and which law is accordingly the lex arbitri, or fail to refer to that law at all. Instead, many awards refer exclusively to the ICC Rules and apply law out of the blue. The ICC Secretariat unfortunately encourages this, perhaps also because the ICC Rules are what it knows best. There is, of course, nothing wrong with referring to the ICC Rules since it is the will of the parties that they should be applied, but this is also the case of the (international) arbitration law at the seat of the arbitration since the parties have chosen, albeit often indirectly, the seat of the arbitration. 3[Page430:]

10. It is no doubt also important to state that the lex arbitri4 gives the parties- and failing them the arbitral tribunal-ample leeway to determine the procedure to be followed. Many parties wrongly believe that when a law is chosen as the 'applicable law', this means that it will apply to absolutely every question that may arise, including the manner in which to proceed before the arbitral tribunal. Some parties also believe that once the seat of the arbitration has been determined this means that the procedural law of the seat must apply, which is quite wrong. 5

11. Most challenges of awards that are not based on the alleged lack of jurisdiction of the arbitral tribunal are based on claims of lack of procedural due process. It is therefore essential for the arbitral tribunal to set out in considerable detail-in more detail than a State court would-the manner in which the proceedings were conducted. The award is the right place to give the reasoning for procedural orders that were taken along the way. If reasons were provided at the time, although in most instances this is not required, these reasons should be reproduced in the award since the State court is likely to read the award as a selfcontained document.

12. Many parties find it difficult to state their prayers for relief in an intelligible way. For instance, they will use the word, 'alternatively' when they mean 'subsidiarily'. One also sees far too many requests for declaratory awards, legal grounds for particular types of relief that may limit the relief requested to those grounds alone, and other such mistakes. The arbitral tribunal can help here. 6

13. Many parties also change the wording of their prayers for relief with each written submission. Very often, no substantive change is intended at all. The ICC Rules provide in Article 19 that each time the prayers for relief as already set out in the Terms of Reference change, the arbitral tribunal should take a particular action. In practice, this rarely occurs. It is therefore important that the award identifies the prayers for relief upon which it is rendered. Claims that the arbitral tribunal has ruled ultra petita come mostly from parties incapable of defining their petita in the first place. If the award states first what the arbitral tribunal understands the petita to be, and then proceeds to deal with all of them and only them, claims of ultra petita will fail. 7[Page431:]

14. Most important, however, is the right to be heard. To be sure, the parties must also be treated equally, but in practice it is hard to find a case where the parties were heard, yet treated unequally. Claims of unequal treatment are usually based on an arbitral tribunal's alleged refusal to accept last minute evidence presented late or in a form not foreseen in the Terms of Reference or in any order that the arbitral tribunal may have issued giving directions.

15. With regard to the law applicable to the substance of the dispute, State courts expect the arbitral tribunal to set out first the rule of conflict of laws used to determine the substantive law to be applied to a particular question. Too many awards jump to some law, usually argued by one of the parties, without showing how that law is reached from the starting point of the (international) arbitration law at the seat of the arbitration.

16. Frequently, an arbitral tribunal also fails to see that when there is a reference to a law, this is a reference to the private law dealing with the substance of the question, not a reference to the (international) arbitration law of another jurisdiction. 8

17. It is entirely proper, and indeed often good practice, to include subsidiary reasoning, assuming arguendo that the primary decision is incorrect. Far from weakening an award, this strengthens it.

18. To succeed, any remedy taken against an award must not only successfully attack the primary reasoning, but also any subsidiary reasoning. If there is persuasive subsidiary reasoning, this may discourage the losing party from attacking the award even if the primary reasoning is perhaps less convincing, even though arguable.

19. Given that judicial review is extremely limited, it is dangerous for a winning party to win before the arbitral tribunal with a primary argument that may not be its strongest point. Once an award has been set aside on that point, it is sometimes difficult for the party that first won before the arbitral tribunal to win again on the basis of the-better-subsidiary argument. In some jurisdictions the case is remanded to the same arbitral tribunal, and if the arbitral tribunal is good, the day will be saved. But some arbitral tribunals are not so good. Also, in some jurisdictions-and these unfortunately include the Netherlands-the arbitration agreement is considered to have been 'used up', so the case may then go to a State court who knows where. [Page432:]

20. There are other psychological reasons why subsidiary reasoning is often a good thing. Issues on which the parties spent considerable effort should be discussed by an arbitral tribunal even if they are irrelevant. We all know what happens particularly with issues of law: at an early stage of the proceedings some young enthusiastic lawyer in a firm representing a party does extensive research and produces long memoranda on the law. All over the world, lawyers prefer law to facts and must 'sell' their research to the client. In due course this leads to expert opinions on the law being presented to the arbitral tribunal. If the arbitral tribunal simply brushes all this aside as irrelevant, the party representatives will be upset and have some explaining to do. They will be tempted to recycle the considerable accumulated learning on the law and present it in support of a judicial remedy, which will usually be limited to questions of law anyway. For psychological reasons, it is therefore often better for the arbitral tribunal to give any learned legal opinions it has received a decent burial.

21. Interest and costs are aspects often unfortunately underestimated by arbitral tribunals.

22. Whether the award will be enforced abroad, in any other of some 160 countries, is difficult to say. Even in the 136 countries where the New York Convention is in force, there is no consistency in its application. Often, a claimant does not yet know where the award will be enforced and even less so the arbitral tribunal.

23. Sometimes, awards are not even enforced as such but are used as a basis for claiming insurance benefits, particularly from credit insurance companies under the many schemes that exist in the world. Some awards are selfenforcing because the winning party was fortunate enough to obtain an attachment of the loser's assets before the arbitration or while it was pending. This is possible, for instance, in Switzerland and the Netherlands and, similarly, by way of a freezing order-perhaps even a worldwide freezing order-in England.

24. When writing an arbitral award, the arbitral tribunal should bear in mind that to be enforced in some faroff jurisdiction an award should be written in a didactic manner that will be understandable to State judges in places of enforcement, even when translated, perhaps not very well, into a local language. When there is a reference to a statute, the text of that statute should be provided, with an indication of the language in which it was originally enacted. To display excessive learning may well be counterproductive, particularly if reference is made to the arbitrator's own publications. [Page433:]

25. The most attentive reader of an award is of course the losing party. By the time the award is written the arbitral tribunal in most cases knows the party and its party representatives well and will have to tailor the style of its reasoning to that particular party.

26. The tone of an award should always be measured and objective. Some parties, due to their inadequate command of the language, may become easily upset. 9 Many losing parties will tend to think that if only a particular witness had testified better, if only the lawyer had been more forceful, if only the arbitral tribunal had listened to one more expert or considered the documents belatedly submitted, if only the arbitrator appointed by the party itself had been more persuasive, the case would have been won. If a party is inclined to think in this way it is wise to show the many factors that led to the decision ultimately rendered, even though the price of doing so is added complexity.

27. The losing party should be convinced that it has not been treated unfairly and that challenging the award in the State courts at the seat is hopeless, assuming of course that the seat has State courts which are rational and impartial.

28. Attitudes to international commercial arbitration vary widely around the world. There is fierce competition for international arbitration business between certain jurisdictions, each of which tries to be more arbitrationfriendly than the next. The core regulations they offer are essentially the same and correspond to the UNCITRAL Model Law on International Commercial Arbitration. However, legal differences remain concerning what is arbitrable, whether a decision by an arbitral institution about the challenge of an arbitrator is reviewable by a State court, whether the question of the jurisdiction of an arbitral tribunal may be brought before a State court before the arbitral tribunal itself has been formed and has decided on its own jurisdiction, whether arbitral tribunals have the primary power to order provisional and conservatory measures, whether the arbitral tribunal has a measure of discretion with respect to the applicable law where the parties have not chosen it, and, above all, to what extent awards may be set aside, how many tiers of review there are, and whether setting aside proceedings may be waived altogether. Further areas of competition concern value added tax and visa requirements. It follows that where, for instance, the jurisdiction at the seat treats as arbitrable matters that are not considered arbitrable elsewhere, an award rendered there may not be enforceable in many other jurisdictions. 10[Page434:]

29. Other countries, unfortunately, are less arbitrationfriendly, on the evidence of Bar regulations and court decisions involving parties from those countries owned by the local, regional, or countrywide government or party, by the armed forces, or by the ruler or the ruler's family. If the seat of the arbitration is in a country of this type, it may well happen that a perfectly fine award is set aside for flimsy reasons by the State courts at the seat. 11 If an award is presented for recognition and enforcement in a country of this type, it may well be refused enforcement for reasons of public policy12 or on other, more imaginative, grounds. It should be said, however, that some of these countries are making an effort to improve the situation-in their own interest. 13

30. It may even happen that a local arbitral institution does not provide the parties with the evenhanded service they expect from it but instead favors the local party. This demonstrates the importance of a truly international firstrate institution such as ICC.

31. All participants should generally do everything in their power to ensure that all arbitral awards-or as many as possible-will be recognized and enforced at the seat of the arbitration and abroad. This is a lifelong task. It involves inspiring the international arbitration community, as well as a wider group of international business lawyers less conversant with international arbitration. It involves working with State court judges, particularly those who regularly deal with international arbitration cases and challenges of arbitrators and awards. It involves persuading those politicians who may have a beneficial or harmful influence on the development of our field. How can one do all this with a smile? It takes an extraordinary personality and dedication. A shining example for all of us is the long and continuing work of Robert Briner. [Page435:]

1
Just as an example see L. Huber, Schweizerischer Juristentag 2002 at 153.

2
Who would accept the first sentence of the Bible being reduced by a similar method to: 'In the beginning the Lord created the ear'?

3
For no good reason, when an arbitral tribunal refers to the 'seat' of the arbitration, the ICC Secretariat corrects this into 'place'. Admittedly, the ICC Rules unfortunately still use the word 'place', but the lex arbitri often uses the better word 'seat'.

4
e.g. Article 182 of the Swiss Private International Law Act or Article 34 of the English Arbitration Act 1996.

5
Provisions such as those cited in the previous footnote show this.

6
There was an ICC case in which a party took twentyfive pages to set out its prayers for relief. The arbitral tribunal reduced this to half a page and asked the party: 'Is this what you wish us to award you?'The answer was yes.

7
Earlier formulations may be relevant for the decision on costs.

8
To take an example, if Article 178(2) of the Swiss Private International Law Act refers to three laws it means three private laws. Thus, reference to Russian law would mean the Russian Civil Code, not the Russian law on arbitration; and to Swiss law the Swiss Federal Code of Obligations, not the Private International Law Act.

9
Some believe that the word 'alleged' implies that the allegation is untrue.

10
The Swiss Federal Supreme Court was quite aware of this in BGE 118 II 353, cons. 3d. See R. Briner, 'Article 177' in S.V. Berti, ed., International Arbitration in Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Statute (Kluwer Law International, 2000) § 19.

11
An example was the perfectly fine Chromalloy award that was set aside in Egypt for allegedly notapplying the right type of Egyptian law.

12
Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

13
An example is China: Article 269 of the Civil Procedure Law of 9 April 1991; Article 72 of the Arbitration Law of 31 August 1994; Provisions on Certain Questions concerning the Jurisdiction of Foreign related Civil and Commerce Litigation Cases, issued by the Supreme People's Court on 25 February 25 2002; Some Provisional Stipulations on the Work of Enforcement of the People's Court, issued by the Supreme People's Court on 8 July 1998; Fee Charging and Time Limits for Handling Cases in Respect of Recognition and Enforcement of Foreign Arbitral Awards, issued by the Supreme People's Court on 14 November 1998;para. 2 of the Notice on People's Court Handling of Issues in relation to Matters of Foreignrelated Arbitration and Foreign Arbitration issued by the Supreme People's Court on 28 August 1995.