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.

A unique feature of ICC arbitration concerns the "scrutiny" of awards by the International Court of Arbitration. Such scrutiny is mandated by Article 21 of ICC Rules which states that:

Article 21

Scrutiny of award by the Court

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 to be noted that although the word "scrutiny" (examen in the French version) appears in the heading of this Article it is neither defined nor does it appear in the text of the Article. Rather the Article in its text refers to the powers of the Court once a draft award is submitted to it when it states that the Court may require modifications as to form and may draw to the attention of the arbitrator points of substance. However, the importance of this Article is in its last sentence where it in effect states that an award is not final and binding until approved by the Court. No other system of arbitration has such a requirement.

There remains the difficult question as to what constitutes the permitted modifications of "form" which the Court can require and what constitutes points of "substance" which the Court can draw to the attention of the arbitrators without affecting the arbitrators' liberty of decision and the Court, on a continuous basis wrestles with this question.

Turning now to how the Court fulfills its obligations under Article 21. In practice, the first step that takes place is the submission by an arbitral tribunal of a draft award to the Counsel in charge of supervising the arbitration. The Counsel studies the proposed draft and prepares a written report with respect to it describing the arbitration in general terms and noting any obvious mistakes such as typing errors, mathematical miscalculations, failure to deal with a particular claim or any other obvious errors in the proposed award.

The Court then designates a Reporter from amongst its members who is charged with preparing a separate written report to the Court itself concluding whether or not the Court should approve the award and what modifications, if any, should be required or suggested of the Tribunal. The choice of the Reporter is usually based upon his familiarity with the applicable law, the legal questions involved and familiarity with the language of the case. All awards are of course translated into French or English so that all members of the Court may participate in the discussion. In addition, it is the practice of the Court to keep the same Reporter on a case from the beginning to its conclusion which guarantees a certain consistency of treatment.

The draft award together with a copy of the Counsel's and the Reporter's reports is then delivered to all members of the Court, usually at least ten days prior to the Plenary Session during which the required "scrutiny" is to take place.

At the Plenary Session, the Reporter makes an oral presentation of his conclusions following which there is an open discussion with respect to the award in question.

One of the most striking features of the discussion which takes place is the depth of the analysis made by the Court members which is not surprising considering the seriousness with which the Court takes its responsibilities and the multitude of legal systems and points of views represented on the Court. It is not unusual for Court discussion to last up to an hour with respect to a particular award.

Finally, the Court must and does either accept an award as submitted or decides to return it to the arbitral tribunal requiring modifications as to the [Page47:] form of the award or, if applicable, drawing the Tribunal's attention to points of substance without affecting the latter's liberty of decision.

If the Court feels that certain minor modifications are required it can approve the award, subject to such modifications, which avoids having to re-examine the award once modified. On the other hand, if the Court feels that the modifications required are sufficiently important it returns the award to the arbitrators without approval, requiring them to re-draft the award and send it back to the Court for subsequent approval.

When the Court wishes to draw the arbitral tribunal's attention to points of substance, it, of course, does not approve the award at the Plenary Session in question, but returns it to the tribunal with such suggestions. The tribunal is then required to re-submit its award to the Court with or without taking into consideration such points of substance. This re-starts the process and the award is once again presented to a Plenary Session for approval with a Reporter once again presenting his conclusions to the Court.

The Court, in its deliberations, takes into consideration the fact that the non-approval of a particular award results in a delay in the final determination of the matter in question. Such delay may not merely entail waiting until the next monthly Session of the Court as the arbitrators are often separated geographically and find it difficult to re-convene and agree to any changes in their originally proposed draft award. However, the Court recognizes its overriding duty to correct errors which can save the parties years of legal trouble in the enforcement of an award, if such errors are not corrected.

Once approved by the Court notification of such approval is given to the arbitrators who then sign the award rendering it final and enforceable. The award so signed is deemed to have been made at the place of the arbitral proceedings on the date of signature. It is then notified to the parties by the Secretariat of the Court.

In discussing this procedure, it should be pointed out that certain questions have arisen repetitively at the time of the Court's discussion at a Plenary Session. For instance, recently in complicated arbitrations more and more arbitrators render interim decisions which require the Court to determine whether or not such decisions are "awards" which require approval of the Court or procedural rulings which do not. Often arbitrators entitle their decisions "interim awards" or some other kind of "award" when in fact they do not finally dispose of a claim presented in the arbitration and then the Court must decide what its role is with respect to such decisions. In general the Court attempts not to raise a procedural decision to the level of an award regardless of how it has been entitled.

In addition, there is often a dissenting opinion attached to a proposed award. Such dissenting opinion is delivered together with the proposed award to the members of the Court. However, a dissenting opinion is not part of an award and it need not be approved. To the extent a dissenting opinion raises questions of form or of substance, the Court, however, treats it as a comment similar to a Reporter's comments on a proposed award and then decides whether or not to take any such comments into consideration in the course of its "scrutiny".

A word should be said as to the time and effort put into this procedure by the members of the Court. During my term as a member, I was consistently struck by the conscientious manner in which the members performed their obligations. At each session the members are called upon to discuss around ten to fifteen different matters. Many of these matters are long and complicated, often running to over fifty pages of text. I was always surprised at the number of Court members present at a session who had obviously taken the time to study the cases presented. Personally it often took me two or more days to adequately study all the matters brought to the Court at any session for discussion and obviously if, in addition, I was appointed a Reporter for a particular matter, the amount of time necessary for preparation greatly exceeded such two or three days.

In conclusion, it is evident that there are no detailed directions in the ICC Rules as to what the Court is required to do in determining whether or not to approve a particular award. The one clear and overriding principle consistently evoked and applied by the Court is that it is not a court of appeal nor a fact determining body. It hears no witnesses nor examines evidence. Its role is to examine a written text and to attempt to cure it of any faults or weaknesses that might endanger its validity as an award or its enforcement.

Experience has shown that the process is useful and welcomed by arbitrators and parties and it is a fundamental cornerstone of ICC arbitrations.