One of the main duties of the arbitrator is to write his decision in the form of an award. How does the arbitrator attend to this work? For whom is the award drafted? The Bulletin is thankful to Professor Marcel Fontaine and Judge Humphrey LLoyd for sharing their invaluable experience and know-how on this subject, from a civil law and a common law perspective, respectively. David T. McGovern completes these presentations with a clear description of the scrutiny process of draft awards by the ICC International Court of Arbitration, based on his extensive knowledge of the process gained as a member of the ICC Court for several years.

Introduction

Curiously, very little has apparently been written about how awards should be drawn up. Surely this cannot be because those who write about arbitration practice do not have much experience about the ultimate product of the exercise! Is it perhaps that they are embarrassed because they are not always proud of their own efforts? So many awards of three arbitrators are team efforts resulting in compromises and at times in a hodge-podge of muddled reasoning and presentation. Or is it because the task is so daunting? Or is it because, [as the Editor of this Bulletin recognises,] that there is such a difference in approach of the common law as compared to the civil law that no helpful guidance can be given? Certainly the more I wrote on this subject the more I became aware of points that I had not previously fully understood and the more I became conscious that I might not always have successfully practised what I now preach.

Let me lay down some markers or ground rules. First, I write as a lawyer trained in the common law of England & Wales. We are used to judges giving full reasons for their decisions on issues of fact and of law. Their judgments tend to be longer than those found by judges in the United States who try cases without juries. So the style of an English lawyer differs from that of an American lawyer.

Secondly, prior to 1979 it was not the practice in England to give reasoned decisions in arbitrations. The reasons could be seized upon to upset the award. Since 1979 not only are reasons permissible, but if requested it is the duty of the arbitrator to provide them so that, amongst other things, the possibility of appeal can be explored. But there can generally be no appeal on decisions on the primary facts so awards still tend not to give much by way of justification for such conclusions.

Thirdly, I shall make no distinction between an award produced by a tribunal consisting of three members and that written by a sole arbitrator since the points that I shall endeavour to make are applicable to both. Nevertheless awards made by a tribunal of three arbitrators do require an answer to be given to a preliminary question.

Preliminary-Who writes the award?

Under Article 19 of the ICC Rules, in the event of dissent, the majority prevails or if there is no majority the award is to be made by the Chairman alone. (Other rules differ; for example the UNCITRAL Rules strangely do not contemplate the possibility that there might be a majority.) If the Chairman is not part of the majority the award will clearly be written by one or both of the others.

Normally, where all the arbitrators agree the Chairman may be expected to write the award. Under the ICC system the Chairman will usually receive 40% of the sum fixed by the International Court for fees. If the Chairman is therefore to be paid one-third more than his colleagues it is natural that in general they will expect him to earn his additional remuneration since the work of organisation of an arbitration prior to the hearing does not warrant such a difference. But the allocation made by the ICC is provisional and is by no means immutable. Moreover it should not be regarded as an implicit direction [Page39:] that the writing of an award must be undertaken by the Chairman alone if only because the International Court of Arbitration has no competence to direct the arbitral tribunal as to what share of any work each is to perform (cf. Article 2.1). It is quite common for the draft of the award not to be written by the Chairman, although the tribunal must always first agree on what is to happen e.g. that the Chairman or a member is to produce a draft as the basis for discussion or that the draft is to represent what has been agreed by the tribunal. Let me give some examples of the occasions when some one other than the Chairman might write a draft of the whole or of part of an award.

First, the award has to be clear and comprehensible. If one member is better than the Chairman in writing in the language of the award it would be sensible to invite that person to produce the first draft and certainly to re-write and correct any draft produced by the others.

Secondly, if there are issues whether of law, fact or expertise in which one member is more competent than the others it is similarly sensible if that member takes responsibility for writing the award on those issues so as to minimise the possibility of inadvertent error and also of extensive re-writing of a draft (as it is crucial that the award should express the opinions of all members of the tribunal in a style and manner satisfactory to each).

Thirdly, if the issues in the case are complex it is quite usual for the preparation of the draft to be split between the members so as to share the burden. For instance the Chairman might undertake to write the introduction and background to the dispute and to deal with the basic facts, another member might write the part relating to the interpretation of the contract and the application of the substantive law, and the third might deal with the assessment of loss or damage.

However, I would introduce a few caveats. First, whether the work is initially undertaken by the Chairman or is shared, each member must examine the work of others as if it were his own. Division of the labour of producing a draft is not tantamount to delegation of responsibility for that draft or of the whole. Secondly, bear in mind that a draughtsman often controls the result. In international arbitrations unfamiliarity with the niceties of the language of the award can lead to people agreeing to wording which does not mean what they thought it meant. Thus, it is sensible first to establish by discussion what is to be said in a draft which is to be written by another. Thirdly, similar problems can occur where there are technical parts. Arbitrators must understand every issue: lawyers must not abdicate responsibility for technical matters just as non-lawyers must not accept unquestioningly what a lawyer member says is the law. Arbitrators who are not able to follow the debate and to make up their own minds on every point ought not to have been appointed or to have accepted the appointment (or continued as arbitrator). Fourthly, these factors lead me to be firmly opposed to any draft being written by anyone other than a member of the tribunal. For example, I do not consider acceptable to allow the draft to be prepared by the secretary of the tribunal. I know that this practice is normal in both domestic and international arbitrations in some countries and is so prevalent amongst some arbitrators that such views are thought to be not only impractical but virtually heretical, even though I believe that they are shared by many other common lawyers since in our tradition, the duty of an arbitrator is a personal one and not to be delegated. This practice cannot in my view be extended to allowing a person who was not present during the hearing and the deliberations of the tribunal to prepare a draft, however tempting it might be for the Chairman to ask a junior member of his firm to "read the file and get out a draft in favour of the Claimant".

With these preliminary observations, I now turn to the substance of this contribution.

The writing of the award

I. For whom is the award written?

This question serves to introduce my first main point: for whom is an award in an international commercial arbitration written? Let us consider the likely candidates:

A. The tribunal itself;

B. In the case of an ICC award, the International Court of Arbitration;

C. The parties;

D. A court of enforcement or challenge;

E. Others.

It is in my view very important at the outset to determine which of these the writer is aiming for. [Page40:]

A. The tribunal

This is not as silly as it seems. I place it there for two reasons. First, as a reminder that the award is an outward looking document. It is primarily to be read by others. Secondly, because the award should not be written as an exercise in self-justification. Whether the award comprises the views of one person or of three or more the authors are bound from time to time to feel uncertain and the effect of overcoming that uncertainty can lead to awards being written to justify the dismissal of self-doubt rather than as an expression of reasons for the award. Obviously, where there are three arbitrators who have worked their way by debate towards an award acceptable to all, the tribunal's deliberations may surface-and rightly so since they will focus on the true reasons for the award. But care must be taken to see that the award is not as a result unbalanced. The tribunal may have had a fierce argument about an issue which in context does justify extensive treatment. The award should not be written to record points made by members of the tribunal, especially if they were not in the forefront of the cases of the parties. The award should not be written as a record of the tribunal's internal deliberations but for consumption by those for whom it is intended.

B. The ICC Court

If the arbitration is being conducted under the ICC Rules of Arbitration, then the draft award has to be submitted to the International Court for its scrutiny, as required by Article 21:

Before signing an award, whether partial or definitive, the arbitrator shall submit it in draft form to the International Court of Arbitration. The Court may lay down modifications as to the form of the award and, without affecting the arbitrator's liberty of decision, may also draw his attention to points of substance. No award shall be signed until it has been approved by the Court as to its form.

It is the practice of the court generally to treat an international arbitration award which lacks reasons or which contains lacunae in its reasons as being defective in form. Article 21 therefore highlights the need to make the award comprehensible and self sufficient to an outsider. In addition the practice of the ICC Court means that there is no reason to differentiate between an award made in arbitration under the ICC Rules and one made under other well-known regimes, such as UNCITRAL or ICSID both of which expressly require reasons. Whilst it is possible to conceive of an international arbitration award without reasons such a creature is now unlikely to be a valid document since most jurisdictions now call for reasons.

C. The parties

Subject to observations under D below, the award is likely to be primarily directed to the parties. One or both will have required the arbitration and generally it may be assumed that they will be interested not just in the result but in the reasons for the conclusions reached. Furthermore, most parties would like to know what the tribunal thought of the major points of defence even if they did not affect or were not material to the outcome.

Many lawyers seem to think that the parties are interested only in the final conclusions: who pays whom how much? This is not always the case. Having spent much time and money in the arbitration, some parties wish also to know the views of the arbitrators. They may affect the future. So where the parties continue to do business with each other the award may have implications for that relationship. Equally, if the dispute concerned the meaning of one of the parties' standard terms of business or a form of contract in common use, the outcome may have far-reaching effects, for not only do awards get published informally, but there is growing tendency for awards or those sections of them of general public importance to find their way into, for example, this Bulletin, the Yearbook of International Commercial Arbitration or Clunet.

D. A court of enforcement or challenge

The scrutiny conducted by the ICC International Court of Arbitration is concerned both with form and substance, but the Court is also concerned about the reputation of arbitration generally especially that conducted under the ICC Rules. Its scrutiny for the purposes of giving its approval will therefore be directed to eliminating, if the tribunal agrees, any patent flaws in form or reasoning which might make an award unenforceable or susceptible to some form of challenge. Although the tribunal is not directly concerned with how or whether an award can be enforced it must draw up the award in such a way that is likely to [Page41:] be enforceable for otherwise it will have failed in its principal duty, namely to give its decision in a manner which will finally resolve and not perpetuate the dispute. This point is of the greatest importance where the award is a partial one.

E. Others

There will clearly be occasions when the tribunal will know that the award will be read by and will affect others. For example, where an insurer is conducting the case of a party, the tribunal may wish to consider whether it is necessary to say anything in the award which might affect the rights and duties of the insured and the insurer. So too if the award is known to be required to be enforceable for the benefit of a third party such as where export credits or guarantees are involved. Similarly, if the award is likely to be used to pursue a claim against or to defend a claim by a third party-as where an award is adverse or of benefit to a contractor because of some apparent fault on the part of a subcontractor or the employer-client, neither of whom are parties to the arbitration. In all these cases the tribunal will wish to consider how to write the award so that the position of those not represented before them is not unnecessarily prejudiced.

In summary therefore, even before the tribunal puts notional pen to paper, it must think about the recipients of the document. Identification of the potential recipients and of their respective interests will influence all that goes into the award: its form, its substance or reasoning and the expression of its conclusions.

II. What is to be the form of the award?

Any discussion of form, of necessity, also intrudes into matters of substance, reasoning and conclusions.

First, and this comes as a surprise to many common lawyers, an award may have to be in a certain form in order to be valid under the applicable rules or the law governing the seat or place of arbitration. This factor tends to be overlooked especially where the proceedings have otherwise been conducted in accordance with a procedure familiar or acceptable to the common lawyer. Thus a tribunal unfamiliar with that procedure would be well advised to be informed of it. Generally the easiest course is to ask the parties. Certainly the party who believes that the award will be in his favour should make sure that the tribunal is aware of the formal requirements e.g. whether the document should record the names and addresses of the parties, their legal representatives, and of the arbitrators. To many familiar only with domestic arbitrations this may seem to be unnecessarily tedious, since an arbitration is supposed to be a private means of dispute resolution, but it provides another telling illustration of why the award has also to be written for external circulation.

III. The contents

A. The beginning

Secondly, it is generally sensible that the award should have a beginning, a middle and an end. The beginning, after the preliminaries, such as names and addresses should set out how the tribunal came to be constituted, how the issues came to be determined i.e. where the ICC Rules apply, in the Terms of Reference, or by the agreement of the parties, or by the tribunal itself, and what those issues are. If for example the original issues are lengthy it may be better to collect or summarise them but if this is done it must not be forgotten that the award must provide a reasoned answer to each of them. Similarly if the issues were to have been defined briefly, it will be necessary to amplify them by setting out the true sub-issues which had emerged as necessary for decision. In this way the structure of the reasoned award begins to be formed.

It is not in my view usually desirable to annex to the award any document defining the issues as they can just as well be incorporated in the body of the award. The middle will thus be devoted to the issues and the end will be the ultimate decision on those issues.

B. The issues stated

The issues that have to be decided should be presented in a logical order (and thus may depart from the order or framework used in the Terms of Reference required under Article 13 of the ICC Rules). For example, the principal issue might have been stated to be: Was the Claimant entitled to additional payment for extra work? Such an issue is likely to require further analysis: e.g. was the work in question extra, how did it come to be done, does the contract provide for [Page42:] payment in the circumstances in question, does the contract contain a mechanism for evaluating any additional payment and if so what is the result of its operation and if not what other means exist for compensating the Claimant? Even this analysis would unearth a typical issue which may be buried in one or more of these, i.e. a question as to whether the Claimant is entitled to advance any claim at all. It is clearly of importance that fundamental issues such as these are isolated for separate early treatment if this has not already been done when the Terms of Reference were drawn up. Nonetheless, it is not always possible at that early stage for the issues to be comprehensively analysed and in view of the restrictions imposed by Article 16 of the ICC Rules, many prefer to frame the issues in wide terms. However issues which may be determinative of jurisdiction of the admissibility of a claim or defence or which ought otherwise to be decided before other issues should always have been stated separately.1

Such issues will include those going to jurisdiction, although in most cases issues as to jurisdiction will best be dealt with by a separate award rendered before any other, as will questions relating to whether a claim or defence may be advanced as a matter of legal principle, e.g. whether the claimant is competent to do so or whether a claim or defence is time-barred, and issues as to the contractual admissibility of certain claims or answers.

Such a presentation of the issues which require a decision and the order in which they will be discussed and decided should also be conducive to minimising the possibility that the tribunal will make an award decisive of a matter outside its jurisdiction.

Dissatisfied parties may be very happy if they can argue that the tribunal has exceeded its jurisdiction. Tribunals naturally worry about this possibility. It can occur particularly where a party advances a submission that is found to be incorrect but may be replaced by another submission that is correct but which is not reflected sufficiently or at all in the issues as defined. Ideally, the issues should have been drafted widely so as to avoid this problem. In some instances, during the course of the proceedings the opportunity will arise to agree that the issues should be restated or amended. If this occurs the award should record the agreed deviation so that no attack may be made on it. If this route is not open then the tribunal must of course keep within its remit.

The problem frequently arises in relation to the amount of a claim or series of claims. The amount claimed may be increased during the proceedings either at the request of the claimant (if allowable) or because on investigation by the tribunal is found to be understated, e.g. where a constituent element has been misallocated under another head. Sometimes the increase may be so great as to call into question whether the dispute is the same as that originally referred (e.g. where the tribunal is appointed to determine a dispute decided by the Engineer under clause 67 of the FIDIC Conditions). It is therefore good practice to record at the outset of the award the amounts which have been specifically claimed and in respect of which the award may be made, and, if they differ from those claimed in the statement of case or in the Terms of Reference some brief explanation should be given at this point, e.g. that the increase was not objected to or that it was allowed by the tribunal as falling within the permissible claims or that it was the subject of a rider to the Terms of Reference (as provided by Article 16 of the ICC Rules) or that the increase is in reality the quantification of a claim not previously quantified. If no such simple explanation can be given the tribunal will have to note that it will have to justify the award of the increase and of the amounts or issues related to it.

C. The issues decided

The middle is the most important part. Except in those few countries where there is a developed system of publishing arbitral awards there are few modern precedents for the content of an award. In England, this is especially marked for the reason given at the start of this article. There is therefore a tendency to follow the form of the judgment given by a judge (but not perhaps the style, for arbitrators who are not lawyers have their own techniques).

Essentially, the issues should be treated first by setting out the facts relevant to the background to the contract, then a summary of the main contractual provisions (but there may be a fuller exposition of the key ones later) then the [Page43:] tribunal's findings of fact relevant to the issues, and then the application of the contract or the general law to the facts with decisions on the contract or the law. Where the issues raise important questions about the meaning of the contract it may be preferable to deal with those at the outset, especially if the decision will render it unnecessary to set out certain facts at length because they are not irrelevant.

Here there can be a marked divergence between the approach of a common lawyer and that of a lawyer from another background

D. The facts

The divergence is most marked in relation to the facts. Common lawyers will naturally tend to devote much space to the facts since their experience is grounded on "facts deciding cases". Thus, to them it will be crucial to the reasoning to explain, if the facts were in dispute, why one version or another will be preferred. This can and does lead to a lengthy recitation of the evidence. Note how I express the choice as between the evidence of one party or one witness against that of the other. This dichotomous approach stems from jury trials where the outcome can be presented as if it were black and white: either the police are correct or they are lying. Such a simplistic approach is inappropriate in complex commercial disputes (although not always so since sometimes everything depends on whether one person can be believed). But is it necessary to explain in an international arbitral award why a certain conclusion of fact is reached?

In general the answer will be: not often. Loquacity should be eschewed. Facts should be found briefly and tersely. The tribunal should ask itself whether it is necessary to explain a decision on the facts: do the defined issues require it; do the needs of the parties or other recipients require it? Normally the answer is likely to be in the negative. It is more important to ensure that all the facts material to the conclusions are set out than to give the reasons, unless there are special circumstances, e.g. because there was a procedural dispute concerning the evidence which in turn might prompt a dissatisfied party to complain of a fundamental breach of procedure: see Article V.1 (d) of the New York Convention 1958.

It is certainly not important for a tribunal to record the source of undisputed facts (unless they wish to do so). The tribunal should briefly summarise the evidence on a critical issue of fact and state why it has reached its decision, e.g. that it believes that a certain document is the accurate record of what took place because its contents are consistent with other evidence or that a particular witness either generally or on this occasion gave a reliable account of what took place. It is generally neither necessary nor desirable otherwise to recite the evidence that has been received either so as to convince the reader that the tribunal has apparently taken all the evidence on board or for the benefit of an outsider. It is not necessary since all that matters are the facts which the tribunal considers material and the reasons why facts relied by a party are not considered material. It is not desirable since no encouragement should be given to a court of challenge to find grounds for second-guessing the tribunal. There is one important exception relating to alternative findings.

E. Alternative findings

If the tribunal reaches a decision on an issue of fact contrary to the case or interests of one party but is of the opinion that even if that decision were incorrect it would not affect the outcome, then it should both say so and explain its implications. This will assist certainty. There is however a fiction that believes that an arbitral tribunal should not do so since it implies a lack of certainty as to the tribunal's primary conclusion. I believe this to be misplaced. Rather it should demonstrate a grasp by the tribunal of underlying realities of the dispute, e.g. whichever way a party may present its case it is wrong. So if the issue relates to causation and two causes are postulated, the tribunal should where appropriate both state which cause it considers to be the true cause and also, if it be the case, why the discarded cause, if it had been found to be correct, would have made no difference to the outcome.

F. The law

Once the tribunal has set out the necessary facts, it should then turn to the law. At this juncture 1 return to my first point: for whom is the award written? In so far as the issues in the case require decisions to be made on the interpretation of a contract, then the parties' interest in the reasons may go beyond those necessary to the decision [Page44:] itself. The tribunal's views may influence a decision whether to contract on those terms on another occasion. These factors apply as much to special conditions or technical documents (such as construction specifications) as to general terms of trade or business. Indeed, if the issues involve consideration of a standard form of contract, the tribunal will need to take great care in the formulation of their reasons since, as I have already stated, there is now a strong chance that they will be published, albeit with varying degrees of anonymity.

Reasoning should be persuasive. That is to say, it should provide a full explanation by selecting each of the adverse arguments advanced and giving good reasons why each is wrong. These may not of course be precisely those put forward by the other party (but naturally the tribunal will not reach a decision for a reason which a party did not have a proper opportunity to counter). In this way both the losing (and potentially dissatisfied) party may be convinced that it would not be worthwhile attempting to challenge the award and any court before which a challenge was launched will have a clear account of the tribunal's reasoning. Simply to say: "we prefer the arguments of the claimant (or the defendant)" is not usually satisfactory, even if it is coupled with a summary of those arguments. Such an award may provide insufficient reasoning for it to comply with the requirements of the International Court of the ICC or of other applicable rules. Such treatment will not throw any light on the reasons why the tribunal arrived at its preference and may thus be faulted.

Different factors may apply where the issue is about the meaning or application of the substantive law. Judges in the common law systems have to discuss at some length such issues since their decisions will become part of the law of that system and may be applied under the doctrines of precedent. Arbitral decisions do not create such precedents. Few of those to whom the award is likely to be directed will be interested in a long exposition of the law even if the tribunal is formed with a distinguished former judge. The tribunal should state the principles of law it considers to be relevant, together with the sources that are relied on, and then proceed to show how those principles apply to the facts previously found. Only in the rare cases where there is true conflict between the principles applicable will the tribunal need to provide reasons for its choice.

G. Causation and quantification

So far I have been approaching the subject without referring to questions of causation or quantification. In the majority of cases a tribunal will have demonstrated in its conclusions on the facts how the loss sought to be recovered actually arose and in so doing will have explained whether or not it is satisfied with such proof of loss as may have been offered or was otherwise available. There will however be occasions in which such discussion may usefully be postponed until the issues of liability have been determined. For example, if the defence raises an issue of law (whether of contract or the applicable law) which if correct would prevent the claimant from recovering the whole or part of the loss claimed, it would generally be sensible first to decide whether that defence is sound. (I assume that it has not already been done in a partial or interim award.) If the defence is upheld then in most cases it will not be necessary for the tribunal to set out its conclusions had the defence been rejected.

However, as said above, where a tribunal is satisfied that even if a defence had been correct the claimant would nevertheless not have recovered the whole or part of the loss it should so state, with its reasons, for this would conform to the objective of finality and avoiding further proceedings. In other words, a tribunal should in effect make findings on alternative grounds of claim or defence if to do so might deter the dissatisfied party from considering whether to proceed further. Clearly the tribunal should also set out its reasons on alternative contractual arguments upon which the parties had spent time if to do so would assist the parties in future commercial dealings. These courses should only be followed if the reasoning expressed in relation to the alternative arguments could not detract from the validity of the primary reasoning for otherwise, like the incorporation of dissenting opinions,2 the award may contain its own delayed-action bomb.

It is tempting (and in complex cases almost inevitable) not to give full reasons for the assessment of loss. Unless the loss is agreed or virtually admitted this temptation should be resisted. Very many claims are resisted primarily because they are thought to be exaggerated. This [Page45:] primary motivation can disappear from sight once that party's legal representatives have devised other and supposedly better reasons for defending the claim. The party in question may nonetheless be under no illusions both that the claim is in principle meritorious and that the tribunal will not ultimately be dissuaded from recognising its intrinsic merit. So the real battle may be about matters such as causation and proof of assumed or estimated loss. This frequently occurs in those construction cases where the dispute is fundamentally about the assessment of the claim. Care should therefore be taken in such cases to explain why the tribunal reaches its conclusion. Sometimes this may be done in general but such justifiable terms as where a claim is based on assumptions as to what is "usual" or "customary" or "reasonable" which are not supported by contemporaneous records of actual cost and actual payments.

H. Ancillary matters

The award must also deal in a reasoned manner with ancillary matters, e.g. is interest due and if so under what principle of law and for what period and at what rate(s)? Are goods to be returned and, if so, under what powers? If compensation is to be paid in lieu, how is this to be assessed? Which party is to bear which costs and why and how is the amount arrived at? In some common law jurisdictions matters such as these are argued and determined after publication of the principal decisions on the merits. In an international arbitration it is customary to deal with them (provided that each party has had a proper opportunity to be heard on each of them) as part of the one award (but in an ICC arbitration the arbitration costs fixed by the ICC Court can only be dealt with definitively in the final award).

I. The end

And so we leave the middle and come to the end. Before reaching the very end-the dispositive part of the award-it is as well to go back to the beginning (and to the Terms of Reference in an ICC arbitration) for both the writer and the putative reader of an award must be satisfied that reasoned answers have been provided to all the issues that arose for determination and which led to the final dispositions. So it is not only good practice to summarise the conclusions reached in the body of the award but it is also essential to do so in a case where there are many issues so as to provide a clear link with the dispositions and to ensure that the dispositions do not exceed the jurisdiction or powers of the tribunal. This summary should be further tested by taking the dispositions and dismembering them: do they lead back through the summary to the reasons?

The dispositive part of the award must be just that: it must dispose of the proceedings in their entirety (or that stage of them) by stating what the result is and what action is to be taken in consequence. Here some arbitrators can make errors for in many common law jurisdictions the order of the court is drawn by officials and not by those directly engaged in the case. This is nevertheless the part of the award that really matters as it is this part which is to be enforced. So the tribunal's final decision must be clear: it will award payments by directing one party to pay a specific sum of money to another; it will declare rights; it will order the transfer of property; it will award interest and costs to be paid by one party to the other in certain amounts; it may also deal by declaration, direction, order or award as to what may be paid in the future.

The last check will be to see that the award complies with any requirements as to form and that it has or will be signed by all concurring members of the tribunal. In the case of an ICC award it can then be submitted as a draft for scrutiny. But don't relax, there is bound to be at least some typographical error or other flaw that went undetected and which will now deferentially be brought to your attention by the unrivalled vigilance of the ICC Court's Secretariat!

1
Guidance on how to draw Terms of Reference was given in a Report published in this Bulletin: Serge Lazareff, "Terms of Reference-A Practical Guide, Report of the ICC's Commission on International Arbitration", in The ICC International Court of Arbitration Bulletin, Vol. 3/N° 1, May 1992, pp. 24 and foll.

2
See Martin Hunter, "Final Report on Dissenting Opinions of the ICC's Commission on International Arbitration", in The ICC International Court of Arbitration Bulletin, Vol. 2/N° 1, pp. 32 and foll.