Introduction

It is clear that there is an even greater need to interpret, rectify or amend clerical errors or omissions in the case of arbitral awards than there is in the case of decisions of the national courts. Indeed, not all arbitrators - far from it - have a mastery of the clear and precise language of the courts, and some make do with wording that is intelligible only to people involved in the profession concerned, which may appear incomprehensible to the national authorities charged with enforcing awards.

This is particularly true in the case of international arbitration, as the language in which the award has to be drafted is often not the language either of the arbitrators or of the judge of enforcement proceedings. Moreover, the ineptitude of the initial drafting may well be compounded by inaccuracies or errors in the translation.

Some awards can even turn out to be unenforceable because of the gaps or contradictions they contain.

In many cases, the means of recourse against such awards, while they admittedly exist - permitting judges to set them aside and refer the case back to the arbitrators so that they can express their decision in different terms, clarify or add to it - are inadequate.

In fact, very often ambiguities or contradictions in the award will not come to light at first sight, or even sometimes at the time the application for recognition is lodged, but only at the enforcement stage, hence generally after the expiry of the time limits laid down for recourse. As a consequence, two alternatives remain possible at this stage: to act as substitutes for the arbitrators and reconstruct their assumed intention - which in most cases would be extremely uncertain - or to refuse to enforce the unclear or imprecise points in the award, thus obliging the parties to start a new arbitration procedure.1 Accordingly, the interpretation of an award or the rectification of errors by the arbitrators responds to a practical need.

I. Basis of the arbitrators' power

It is quite clear that arbitrators' power to interpret, rectify or correct clerical errors or omissions largely depends on the procedural law applicable to the individual case in question, and also the date when the arbitrators' assignment expires.

A. "The arbitral award is final"

Once the arbitral award has been rendered, the arbitrators lose any power with regard to the head of claim, and their official function is terminated (functus officio).2 As a result, the arbitrators themselves are bound by their arbitral award (lata sententia, judex esse desinit).3

[Page79:]

On the other hand, it can be observed that, depending on the rules applicable, they may be left with a limited power to rectify or correct clerical errors or omissions, or to interpret the arbitral award.4

It will be noted, on the one hand, that Art. 24 of the ICC Rules of Arbitration defines a limit to this power: as the award is final, the arbitrators cannot make a fresh decision on the same claims.5 On the other hand, the extent of this power is strongly dependent on the national law applicable to the procedure.6 Most of the European legal systems have hesitations in this connection. Indeed, only Greece, Norway, Luxembourg, Portugal and France accord arbitrators an actual power of interpretation, rather than a mere power to rectify manifest errors.7 Even in countries where the national law makes no such provision, at the very least arbitrators have the same power as the national courts, in other words the right to rectify obvious errors,8 In this connection, the 1985 UNCITRAL Model Law, the 1965 Washington Convention relating to ICSID, and various rules of arbitration, e.g. Articles 35 (interpretation) and 36 (rectification) of the UNCITRAL Rules of 1976, accord arbitrators such a power by expressly granting parties a right to request the arbitral tribunal to interpret the award. This right will be lawful insofar as it does not contravene a mandatory rule of the law governing the arbitration, in particular the principle of termination of the arbitrator's official function.9

B. Articles 1475, 461 and foll. of the French Code of Civil Procedure

French law of civil procedure deserves a closer scrutiny, as its rules are frequently applied in relation to international arbitration procedures. In France, the judge's power to interpret decisions he has handed down and which have res judicata authority, is fairly generally recognised (See Art. 461 to 464 of the New Code of Civil Procedure-FCCP). Art. 461 of the FCCP relates to interpretation, Art. 462 to rectification and Art. 463 to filling in gaps in a decision.

In accordance with Art. 1475 para. 2 of the FCCP, arbitrators also have power to interpret the award, to correct clerical errors and omissions which affect it and, when they have failed to make a ruling on one of the heads of claim, to complete the award. Articles 461 to 463 of the FCCP are applicable. But, if the arbitral tribunal can no longer be convened, this power devolves to the court which would have had jurisdiction in the absence of arbitration.

In this connection, it is useful to recall Professor Perrot's statement: interpreting is not judging. Interpreting is seeking the meaning of the impact of an unclear or ambiguous judgment. In the face of problems in enforcing an award, resulting from the fact that the award is uncleanly worded, parties may thus be led to request the arbitral tribunal to remove a doubt, explain a word or an expression, and/or clarify a ground that is too concisely worded, but without ever undermining the award's res judicata authority.10

A clerical error cannot call into question the wording and meaning of the award itself. It cannot be assimilated to a contradiction of reasons.11 Art. 1475 para. 2 of the FCCP accords arbitrators power with regard to clerical errors, as in the case of interpretation. It also refers, as necessary, to Art. 463 of the FCCP. It is difficult to distinguish clearly which procedure to follow - whether that under Art. 1475 or an appeal for setting aside under Art. 1483 para. 3 of the FCCP - and it will depend whether the arbitrator's decision was ultra petita or infra petita. An infra petita decision cannot give rise to an appeal for setting aside, and hence remains subject to the principles of Art. 1475 FCCP. On the other hand, when the arbitrator's decision has been ultra petita, so far as those matters that are outside the scope of the terms of reference are concerned, his powers are terminated, as underlined by Art. 1475 of the FCCP; having rendered his award, the arbitrator has lost the power to do so again.12

[Page80:]

The rule attributing such powers to the arbitrators is appropriate, but for it to operate satisfactorily, it is important that the arbitrators' intervention is sought within a given time limit as determined by the various laws; excessively short in Mexico (one day), its length is more reasonable in Israeli law (30 days). In many of the common law countries no time limit is laid down.

In addition, if a request for interpretation is referred to the tribunal within the statutory time limit of six months, stipulated to be the duration of the arbitrators' term of office (Art. 1465 FCCP), the tribunal is clearly authorised to interpret the award. But if, on the other hand, such a request is referred to the tribunal after the statutory time limit of six months or the contractual time limit has expired, where necessary there will be grounds for extending the arbitration period solely for the purpose of interpreting the award, as the wording of paragraph 2 of Art. 1475 of the FCCP seems to suggest ("The arbitrator nonetheless has power to interpret the award ...").13

In its decision dated 18 April 1992, the First Chamber of the Paris Court of Appeal had the opportunity to point out the continuing power of arbitrators that remained after the arbitral award had been handed down, in accordance with Art. 1475 of the FCCP. On the grounds that - because the terms of reference are agreed between the parties - the arbitrator is prevented from exceeding the said terms of reference and that, moreover, the rectification or interpretation of an award is bound to contribute to the satisfactory performance of the arbitrators' task, the Court of Appeal held that the arbitrator had the power to define the limits of the duties vested in him, through the interpretation of the arbitration agreement, and that likewise he had the power to interpret his award as a result of Art. 1475 of the FCCP. But the arbitrator has no power to interpret his understanding of his terms of reference in a way which would run counter to what he has expressed in his decision.14

Furthermore, Art. 461 of the FCCP only allows judges to interpret their decisions inasmuch as they have not been appealed against,15 So long as no appeal has been lodged against the award, the arbitrator has total freedom.16

II. Decisions of the ICC Court of Arbitration

As the problem of rectification and interpretation of arbitral awards is becoming increasingly common in international ease law, it would be interesting to consider more closely a number of examples drawn from the ICC International Court's administrative decisions,

A. Rectification

In 1987, in a case where Paris was the seat of arbitration, the Court held that an arbitral tribunal had power to rectify items in its arbitral award and approved the rectifications it made. The tribunal had been authorised by the parties to examine each of the claims of the defendant, on the one hand, and the claimant on the other hand, without the said parties appearing before them, in view of Art. 1475 of the FCCP. The arbitral tribunal agreed to rectify an error of computation but it rejected the claims regarding substantive issues, as these were questions not covered by Articles 1475 and 461 to 463 of the FCCP.

In another case, the Court approved a corrected award. The arbitral tribunal had taken the view that the terms of reference did not clearly show what procedural law had been chosen by the parties; that the ICC Rules were silent on this point; and that, accordingly, the law applicable to the procedure, was that of the place of arbitration. Noting the tribunal's choice - of French law in this particular case - the Court took the view that the tribunal was entitled to rectify the final award and correct the reversal with regard to costs as between claimant and defendant.

At one of its sessions in 1993, the Court approved a corrected award. In their award, the arbitrators had noted that the ICC Rules contained no specific provision relating to requests for interpretation or correction of awards; that, as it concerned an international arbitration located in France, the French law was to be applied. The arbitral tribunal had therefore held that the request for rectification of clerical errors lodged by the defendant, with no objection from the other parties, was admissible, and had removed the contradiction contained in the terms of the award regarding the apportionment- of the costs of arbitration. On the one hand, it ordered the three defendants to pay [Page81:] the costs of arbitration jointly and, on the other, it had omitted to mention one of the defendants in the calculation of the sums to be paid. It should be noted that the rectificative award was rendered before the time limit granted for delivering an award had expired.

In a case scrutinised in 1994, the Court decided not to approve the arbitral tribunal's draft award. The award in question was aimed at modifying the starting point from which interest accorded previously should run, as well as the actual rate of interest. The Court held that the correction of the interest rate should be separated from the other requests, as such correction was not admissible because it was a substantive issue in this particular case. Therefore, the Court did not refer this point to the arbitral tribunal for fresh consideration.

In this particular case, the claimant had lodged a request for rectification of clerical errors in a final award. The arbitral tribunal had decided that, in application of Article 11 of the ICC Rules, it had the power to determine directly the rules regarding the rectification of clerical errors. According to the tribunal, it was clear that as a result of the national legislation of the great majority of states, a number of rules of international arbitration institutions as well as important international codifications such as the UNCITRAL Rules of 1976 and the UNCITRAL Model Law of 1985, arbitrators had the power to rectify their award, and this power was not incompatible with the final nature of their award. This implied power was widely recognised and could not be disputed in the absence of an express provision to the contrary; the tribunal took the view that the silence of the ICC Rules cannot lead to such a result. On the substantive issues, the question that arose was whether the correction of the interest rate, rather than being a question of interpretation, was not instead a request for revision of the decision already taken by the arbitrators in this connection.

Unlike the final award, the first draft rectificative award was decided by a majority, as the arbitrator nominated by the defendant issued a dissenting opinion regarding the admissibility of the request. However, the revised draft, approved by the Court, was not accompanied by a dissenting opinion.

In 1996, at the request of a party, the ICC Court approved the rectification by a sole arbitrator of a clerical error in his award. He had ordered "the defendant to pay the defendant" a sum of money. In reality this was an order in favour of the claimant.

In another case, also in 1996, the Court took the view that an arbitral tribunal had the power to rectify its award, on the basis of Article 1475 of the French FCCP, although the error had not been inserted in the award as a result of negligence on the part of the tribunal, but through the negligence of one of the parties. In accordance with French established case law, Art. 1475 is also applicable when, as happened in this particular case, the error that needs correction consists of an erroneous description of the parties resulting from their own negligence.

B. Interpretation

In 1992, the Court approved a final award submitted to a new arbitral tribunal which, despite an objection from one of the parties, had held that a request for the interpretation of two arbitral awards rendered between the same parties, but submitted to different arbitrators, was admissible, In this case (see extracts from Award 6233 of 1992. published in the Yearbook Commercial Arbitration, Vol. XX, 1995, p. 58), the claimant had concluded various contracts with the defendant which had given rise to two arbitral awards. In one of them, the tribunal had ordered the claimant to pay the defendant a sum of money; and, in the other, it had ordered the defendant to pay a sum of money to the claimant.

The claimant had filed a request for interpretation of these two awards, which was submitted to a new arbitral tribunal constituted for this purpose. The defendant took the view that an arbitral tribunal with different members did not have the power to make a ruling on such a request. The arbitral tribunal observed that a request for the interpretation of arbitral awards did not necessarily have to be submitted to the initial arbitral tribunal, as the very essence of an arbitral tribunal was the fact that it was short-lived and occasional. In addition, it held that, after delivering its award, the initial arbitral tribunal no longer had power to proceed with the case. Lastly, the arbitral tribunal took care to underline that a request for interpretation could not be aimed at directly or indirectly modifying awards rendered.

In 1993, the Court approved an interpretative award (see ICC Award 6653, 1993, JDI, 1993, note [Page82:] JJA, p. 1053) which concerned the following case: the defendant had filed a request with the arbitral tribunal for correction or interpretation of a final award handed down by the same arbitral tribunal the previous month, regarding the option that the said award granted it, namely that of choosing between taking back goods that did not comply with the contract or abandoning them on site. The arbitral tribunal, first of all, held the request was admissible in the light of French law, which was the law specified in the Terms of Reference in the event of the ICC Rules being silent. The arbitral tribunal went on to hold that the request did not concern a clerical error but rather a request for interpretation. It observed that this question was generally liable to arise whenever a ruling of a partial or total avoidance of a sale was handed down. It interpreted its award by taking the view that if the defendant wished to recover the goods deemed not to conform with the contract, it would have to make refunds as and when they were made available to it by the claimant.

In 1994, the Court approved an award that rejected requests for interpretation as unfounded. The arbitral tribunal had rendered an arbitral award and, about two years later, the claimant filed a request for interpretation, while the defendant objected to the request in question. With regard to the admissibility of this request, the arbitral tribunal first of all examined the law applicable to the procedure, as the Terms of Reference left the choice of law to the arbitrators in the case of the ICC Rules being silent. On the basis of the fact that the law applicable to the merits of the case was French law, that the place of arbitration was France, that both the language of the arbitration and the nationality of the arbitrators were French, the tribunal had ruled that it was natural to apply French law to the procedure. As Article 1475 of the FCCP enables arbitrators to interpret their awards by following the procedure laid down in Articles 461 to 463 of the said Code, the request for interpretation was indeed admissible, but deemed to be unfounded, as the request in question was in fact only aimed at amending provisions of the grounds and terms of the award that were entirely clear and unambiguous.

C. Other cases

In 1990, the Court examined a request for an addition to an arbitral award, The Court, wishing to safeguard the res judicata authority guaranteed by Art. 24 of the ICC Rules, decided that the request was incompatible with ICC arbitration and that the claimant had to commence a new procedure. During the discussions, a distinction was drawn between such a request for an addition to the award and requests for rectification of clerical errors and requests for interpretation, which are favourably received by the Court, at least when such requests are presented by both parties jointly. However, as the cases above show, the Court may also recognise such requests issued by a single party.

In 1995, the Court refused to transmit a request for interpretation of an award rendered six months earlier to the sole arbitrator concerned, as it was of the opinion that it was a new request and that the arbitrator had not ruled infra petita in any way. Indeed, the issue to which the interpretation referred was not invoked either in the Terms of Reference or in the award. The Court drew a distinction between requests for rectification and interpretation and requests for additions to the award. The issue of the final nature of awards laid down by the rules and especially the question of the Court's obligatory scrutiny of all draft awards are raised more acutely in the latter case than in the former.

In 1992, the Court accepted to commence an arbitration based on a contract containing uncommon provisions: on the one hand, it specified that any dispute that might arise from the contract should be submitted to an ICC arbitration; on the other hand, it stipulated that certain questions should be submitted to a sole ad hoc arbitrator, to whom the case had in fact been referred and who had delivered an award. The claimants criticized the defendants for not having performed their obligations in performance of the ad hoc award. The defendants, for their part, disputed the ICC's jurisdiction in this connection. The Court decided that this case should proceed in accordance with the conditions laid down in Article 8(3) of the Rules.

Conclusion

In 1969, Roger Perrot wrote that the interpretation of arbitral awards was a subject in which, in fact, arbitrators had seldom taken an interest. Established case law in this area was limited to one or two isolated decisions. What is the position today?

[Page83:]

Instruments for the rectification of clerical errors and the interpretation of arbitral awards remain not merely convenient but, in many of the cases presented to the Court, they have turned out to be necessary and useful.

The arbitrators' power is strongly dependent on the choice of law applicable to the procedure. The diversity of national regulations on this question, and even the issue as to which of them should be applied, always pose serious problems. It would thus seem inappropriate that we should simply accept the present situation in which the Court is left with a certain freedom - or rather placed in the embarrassing situation - of having to decide requests for rectification of clerical errors and the interpretation of an award on a case-by-case basis, with no possibility of basing its decisions on a system of clear, precise and universally recognised rules.

The Court's established case law, as we have presented above by comparing it with French law, applied the most often, reveals a certain general trend which might be used as a basis for establishing the principles. On the basis of these principles, it will be possible to determine the law applicable to the interpretation procedure and, hence, which authority - arbitral or judicial - has jurisdiction to make the interpretation in question. In the light of these principles, it will be necessary either to draw up a general rule (whereby arbitrators have the power to interpret their award - should it turn out to be unclear, ambiguous, contradictory or incomplete - and to correct clerical or computation errors, even after the expiry of any time limit accorded for rendering their award) or to opt for a procedural law which sanctions such a possibility. Lastly, it should be noted that very often it will be the arbitrator himself who will be the best placed for defining whether his decision needs interpretation or rectification, as he alone will have full knowledge of the hearings and documents in the file. In any case, future discussion within the Court will be based on these alternatives, continuing the search for a common solution that respects the interests of parties and arbitrators in the context of international arbitration.

1
See Jean-François Poudret, "L'interprétation des sentences arbitrales", in Bucher & Reymond, Recueil de travaux suisses sur l'arbitrage international, Zurich 1984, p. 246.

2
See Mauro Rubino-Sammartano, International Arbitration Law, Deventer, Boston, 1989, p. 411; Peter Schlosser, Das Recht der Internationalen Schiedgerichtsbarkeit, 2nd edition, Tübingen 1989, No. 487; Laurence Craig, William W. Park and Jan Paulsson, International Chamber of Commerce Arbitration, 1990, §22.05, p. 367; Xavier Linant de Bellefonds and Alain Hollande, L'arbitrage, Paris, 1995, p. 87.

3
See Stephen V. Berti, Anton K. Schnyder, in Honsell, Vogt & Schnyder, Internationales Privatrecht, Bale, Frankfurt 1996, Article 190, No. 14; Roger Perrot, "L'interprétation des sentences arbitrales", Revue de l'arbitrage, 1969, p. 13.

4
See Mauro Rubino-Sammartano, op. cit. , p. 412, Peter Schlosser, op. cit. no. 445.

5
See Richard H. Kreindler, "A French Perspective toward the Debate on Revising the ICC Rules of Arbitration", in International Arbitration Report, 1996, p. 6.

6
See Peter Schlosser, op. cit. , no. 715; Poudret, op. cit. , p. 273.

7
See Poudret, op. cit. , p. 273.

8
See Peter Schlosser, op. cit. , no. 698.

9
See Mauro Rubino-Sammartano, op. cit. , pp. 412 to 416; Poudret op. cit. , p. 283.

10
Mathieu de Boisséson, Le droit français de l'arbitrage, Paris 1990, p. 333.

11
Mathieu de Boisséson, op. cit. , p. 334.

12
Jean Robot & Bertrand Moreau, L'arbitrage - Droit interne, Droit international privé, Paris, 1993, p. 186.

13
Mathieu de Boisséson, op. cit. , p. 333.

14
See Jacques Pellerin, Revue de l'arbitrage, 1992, p. 631 (632).

15
Xavier Linant de Bellefonds, op. cit. , p. 88.

16
Jean Robert & Bertrand Mores, op, cit. , p. 384.