I. INTRODUCTION: DECONSTRUCTING REASONING OF ARBITRAL AWARDS

Reasoning is a fundamental cornerstone of arbitral awards, and legal systems, including civil and common law, provide for the reasoning of awards and judicial decisions.¹ Legal reasoning as a process is perceived as a tool of reasonable persuasion under the compelling force of acceptable arguments.²

There is indeed a connection between rhetoric, persuasion and legal reasoning which can be well illustrated in arbitral case law. It has been mentioned that "categorization, narrative, and rhetorics [are] the stuff of everyday life in the law."³ Aristotle defines rhetoric as "an ability, in each [particular] case, to see the available means of persuasion."⁴ In rhetorical argumentation, the premises of the arguments need only be acceptable to the audience that is intended to be convinced.⁵

It is in this context that reasoning may be seen as a means to persuade the recipients and readers of arbitral awards of the existence of a specific process followed in the interpretation and application of the law to established facts in order to reach a certain conclusion. It is unequivocal that, unless otherwise agreed (subject to any mandatory rules under the lex loci arbitri and/or the lex loci executionis), arbitral awards include section(s) on reasoning of the tribunal’s determination of the issues in dispute. Thus, reasoning is not a vague requirement, and thus the approach, methodology and scope of reasoning should be carefully considered.⁶ Moreover, a high degree of adequacy and clarity in the reasoning of arbitral awards is an assurance that the decision is grounded in the law.⁷

Given the quintessential nature of reasoning and the importance thereof for the integrity and survival of the arbitral award, this article shall address the following topics pertinent to the reasoning of awards: (a) reasoning as a fundamental requisite of awards; (b) the scope, limits and categories of reasoning of awards; (c) reasoning as a ground for judicial review of awards in Africa and in the Arab world; and (d) concluding remarks on the reasoning of awards.

II. REASONING: A FUNDAMENTAL REQUISITE OF ARBITRAL AWARDS IN AFRICAN AND ARAB LAWS?

Reasoning of arbitral awards is a controversial topic across the globe. It becomes even more controversial when the scope and approach to "reasoning" is discussed. Almost all institutional rules provide basic references to reasoning of awards,⁸ and national arbitration laws are no exception, where references to the reasoning of awards are made.

Under this section, I intend to analyse and provide an overview of the reasoning requirement in certain African and Arab states. The general rule is that while States may not differ on the requirement of reasoning of arbitral awards, they do differ regarding the mandatory (or non-mandatory) nature of this requirement, its scope, limits as well as the diverse approaches to reasoning.

For the purpose of the overview and analysis under this section, I intend to address the requisite requirement of reasoning under (a) certain UNCITRAL Model Law ("ML") jurisdictions; and (b) the Uniform Arbitration Act in OHADA jurisdictions.

II.A. The UNCITRAL Model Law and Certain African-Arab Jurisdictions

It is unequivocal that the ML has a far-reaching global influence, as it constitutes the source code for many arbitration laws in diverse jurisdictions. In the context of reasoning, the ML provides an overarching principle in Article 32(2) which reads:

The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30. Thus, the ML provides for a balanced party autonomy oriented approach to reasoning that is premised on a default rule for reasoning with a possible opt-out mechanism in accordance with the principle of pacta sunt servanda.

This ML approach is adopted in many jurisdictions, sometimes with a narrow or broad scope of exceptions. For example, in Bahrain, which is a ML-based jurisdiction, Article 31(1) of the Bahraini Arbitration Law (2015) mirrors Article 32(2) of the ML. Similarly, in Egypt, Article 43(2) of the Egyptian Arbitration Law (1994) provides that awards should be reasoned, save in cases where (i) the parties agreed otherwise; or (ii) if the law applicable to the arbitral proceedings does not require reasoning. This is exactly the same position adopted in Syria under Article 42(3) of the Syrian Arbitration Law (2008), in Oman under Article 43(2) of the Omani Arbitration Law (1997), and in the UAE under Article 41(4) of the UAE Federal Arbitration Law (2018).

In Jordan, the Jordanian Arbitration Law (2001) adopted the same approach to reasoning that is applicable under the Egyptian, Omani, Syrian and UAE arbitration laws. However, following the amendments introduced to the Jordanian Arbitration Law in 2018, Article 41(b) of the 2018 amendments now provides that arbitral awards must be reasoned and no specific exception is listed.

In Qatar, which new arbitration law is also ML based, the position is slightly different as Article 31(2) of the Qatari Arbitration Law (2017) provides for three exceptions to reasoning: (i) the parties’ agreement; (ii) a consent award on agreed terms; and (iii) the applicable legal rules do not require reasoning. Conversely, in Saudi Arabia, the new Saudi Arbitration Law (2012) lists no exceptions to the reasoning requirement. Article 42(1) of the Saudi Arbitration Law refers to the requirement that arbitral awards must be reasoned.

In Tunisia, the law distinguishes between domestic and international arbitrations. The domestic awards must be reasoned and no listed exceptions are mentioned in Article 30 of the Tunisian Arbitration Law (1993). However, in international arbitration, Article 75 of the Tunisian Arbitration Law follows the ML approach, where reasoning may be exceptionally disregarded based on the parties’ agreement or in case of an award by consent.

In certain countries in Sub-Saharan Africa the situation merits a mention. In Mozambique Article 39(3) of the Mozambican Arbitration Law (1999) mirrors the rule enshrined in Article 32(2) of the ML. This is the same position adopted in Nigeria under Article 26 of the Nigerian Arbitration Act (2004), in Kenya under Article 31 of the Kenyan Arbitration Act (1995), and in Zambia under Section 16 of the Zambian Arbitration Act (2000).

In Ghana, Article 49(3)(c) of the Ghanaian Arbitration Law (2010) only refers to the parties’ agreement as an exception to the reasoning of awards. In Angola, the Angolan Arbitration Law (2003), which is largely based on the Portuguese Arbitration Law (1986), provides for a general rule on reasoning, but Article 27(2) of the Angolan Arbitration Law provides for three exceptions: (i) the parties’ agreement to exclude reasoning; (ii) the parties’ settlement of their dispute (i.e. award by consent); and/or (iii) the withdrawal of the case.

In South Africa, its new International Arbitration Act (2017) follows the ML approach. Article 6 of the Act states: "The Model Law applies in the Republic subject to the provisions of this Act." Article 31 of the Act mirrors Article 32(2) of the ML. Domestic arbitration remains governed by the Arbitration Act (1965) and reasoning is required unless the parties agree otherwise.

II.B. The OHADA Uniform Arbitration Act Approach

The Organization for Harmonization of Business Law in Africa ("OHADA") enacted uniform acts within the OHADA area, among which is the OHADA new Arbitration Law (2017) which entered into force in 2018. The importance of OHADA is that its laws bind all 17 member States and apply notwithstanding any contrary domestic law.⁹ The OHADA countries are: Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Ivory Coast, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, DR Congo, Senegal, Chad, and Togo.¹⁰

That said the OHADA Uniform Arbitration Act considers reasoning a fundamental requisite for arbitral awards and the lack thereof may constitute a ground for annulment. Article 20 of the Uniform Act reads in pertinent part:

The arbitration award shall contain:

- […]

- Reasons upon which the award is based shall be given.

Article 26 of the Uniform Act also states in pertinent part that:

Recourse for nullity is only admissible in the following cases:

- […]

- if no reasons are given for the award.

Based on the above, it appears that reasoning is a fundamental requisite among the OHADA States and that the absence thereof may lead to nullity under the Uniform Arbitration Act.

III. THE REASONING OF ARBITRAL AWARDS: SCOPE, CHARACTERISTICS, CATEGORIES AND LIMITS— THE CHECKS AND BALANCES

As mentioned above, reasoning remains a fundamental requisite for arbitral awards; its importance transcends its purpose, as it contributes to the legitimacy of the arbitration process and enables losing parties to understand why they lost and how the arbitrators reached their conclusions objectively, neutrally and on the basis of the case record and the governing legal norms.

That said, this section aims at shedding some light on the scope, characteristics, categories and limits of reasoning in a comparative context, in hope of ascertaining the commonalities and differences that define the parameters of arbitral awards in the jurisdictions addressed.

III.A. Scope and Characteristics of Reasoning

Despite the fundamental role and nature of reasoning, the term "reasoning" per se varies, to different degrees, from one jurisdiction to another depending on the specific philosophy adopted by the pertinent legal system. For example, jurisdictions that allow appeals on law or the merits, will expect broader and more detailed "reasoning" than those that do not allow any form of appeal. Additionally, jurisdictions differ in their perceptions of the concept of justice and the effect of reasoned award on the parties and their right to be heard.¹¹

In Egypt, the Egyptian Arbitration Law does not elaborate on the adequacy of reasoning and does not require a specific form of reasoning of arbitral awards. Article 43 of the Egyptian Arbitration Law provides that an award must include the following: (1) the names and addresses of the parties in dispute, (2) names, addresses, standing and nationalities of the arbitrators, (3) copy of the arbitration agreement, (4) summary of the parties’ claims, statements and documents, (5) dispositive of the award, (6) the date and place where the award was issued, (7) the reasoning of the award if required.¹²

While the Egyptian Arbitration Law provides no criteria or elaboration on the content, scope, categories and limits of reasoning of arbitral awards, jurisprudence reveals that it is sufficient to include in the award the legal and factual grounds, which the arbitrators have relied upon when rendering its award,¹³ as well as the parties’ claims, defences, relief and the arbitrators’ analysis and response thereto.¹⁴

In addition, courts have held that reasons must be sufficient to carry the arbitral award, otherwise the award would be null and void.¹⁵ In this regard, sufficient reasons are: (1) those which relate to the subject matter of the dispute, and (2) denote a rational link with the dispositive of the award, and (3) those addressing a fact.¹⁶ In essence, sufficient reasoning necessitates the existence of reasoning that supports the award in all its aspects and parts, which entails that the award should respond to the main claims, defences and allegations of the parties. The Cairo Court of Appeal ruled that:¹⁷

[…] whereas the subject matter of the case and what the claimant company relied upon in the arbitral award is that it lacks reasoning, and […] that the awards must contain the reasons on which it was founded, otherwise they are deemed void. The general principle is that the arbitral award must be reasoned (i.e. including the reasons on which the award was based, and it does not suffice to consider an award reasoned to mention any reasons, but these reasons must include a set of characteristics or conditions which ensures that the legislator’s requirement to mention reasons achieves its purpose. The reasoning of the award must be sufficient—which means sufficient to support the award in all its aspects and parts, this is not the case unless the award has responded/addressed—whether accepting or rejecting—the main claims and allegations of the parties as well as what is being submitted as fundamental defenses for purpose of sustaining same […]

In certain other jurisdictions, a more liberal approach to reasoning is adopted. For example, in Syria, the Syrian courts have held that it is sufficient to provide general reasoning that suffices to prove the basis upon which the award is based.¹⁸ Similarly, in Kuwait, Kuwaiti courts differentiate between facts and law with respect to reasoning. On facts, "factual reasoning" has been defined as the reasons that justify the identified fact, and only this kind of reasoning may lead to the annulment of the award. However, "legal reasoning" can be defined as the reasons that justify the application of the legal rule chosen to govern the facts of the case, and this type of reasoning does not impact the annulment of the award.¹⁹ This is contrary to the approach of Egyptian courts which have set aside an arbitral award on the basis that a tribunal has applied the Egyptian civil law instead of the Egyptian administrative law.²⁰

Moreover, certain jurisdictions have also distinguished arbitral and judicial reasoning, so that what is required for judgments is not necessarily required for awards.²¹

In light of the above, one can distil certain characteristics for the reasoning of arbitral awards:

a) reasons must be specific and clear;

b) reasons must cover the claim, defences and relief sought by the parties; it does not suffice to include reasons for only part of the claim that has been adjudicated.²² However, it is not required that specific and separate reasons be allocated to each and every aspect of a claim or argument;²³

c) reasons must purposively establish a rational link with the dispositive and must not be ambiguous;²⁴

d) reasons should be persuasive, consistent, rational²⁵ and rooted in the evidence on record and grounded in the legal norms governing the merits;

e) reasons are not expected or required to address or examine every statement, document or argument advanced by the parties, but must address the claims, defences and arguments that are material to the outcome of the case.

f) reasons must not be contradictory so as to cancel each other, otherwise the award could be set aside, if the contradiction is of such magnitude so as to collapse the basis of the reasoning.²⁶

III.B. Categories of Reasoning of Arbitral Awards

Irrespective of the reasoning requirement and its scope and characteristics, there are various categories of reasoning that merit a mention, the most notable of which, for the purpose of this article, are: (a) factual and legal reasoning; and (b) narrow and extended reasoning.

III.B.1. Factual and Legal Reasoning

Distinction between matters of fact and law is not always easy and discernible, as is the case of distinguishing matters of substance and procedure in private international law.²⁷ The importance of this distinction is twofold: (i) in certain jurisdictions, only the lack or insufficient factual reasoning can give rise to nullity;²⁸ and (ii) in certain jurisdictions, iura novit arbiter enables arbitral tribunals to engage in more extensive legal reasoning beyond the limits of legal authorities submitted by the parties.

III.B. 2. Narrow and Extended Reasoning

Given that reasoning shapes and informs the decision-making process, it is submitted that the arbitral tribunal’s approach to reasoning may likely impact its findings and conclusions. Moreover, whether the tribunal engages in narrow or extensive reasoning may be informed by the nature of the dispute, the parties’ expectations, the applicable procedural rules and the governing legal norms.

On a different note, extended or extensive reasoning may either increase the risk of setting aside or challenges against arbitral awards,²⁹ or ring-fence the award against nullity or challenges. Thus, extensive or extended reasoning is a double-edged sword that is much dependent on the skilful drafting of arbitral tribunals.

Skilled and experienced tribunals would assess the situation and the approach to reasoning on a case-by-case basis in light of the nature of the dispute, the parties’ expectations, the applicable procedural rules and the governing legal norms, and in due consideration of the fact that nowadays complex relationships and dispute do call for sufficiently detailed reasoning that affords the parties an adequate opportunity to understand and appreciate the basis and rationale for the tribunal’s decisions.

III.C. The Limits of Reasoning of Arbitral Awards

It is submitted that reasoning is not a goal in itself, but is a means to an end, that is: rendering a valid and enforceable award that determines the issues in dispute between the parties. When fulfilling their role, arbitrators, as a general rule, should limit their decision-making process to the facts presented by the parties, their claims, counterclaims and defences, if any.³⁰

As highlighted herein, reasoned awards are intended to (i) provide assurances regarding the nature and quality of justice that is being served by the arbitrator;³¹ (ii) provide the parties with a satisfactory explanation of the arbitrators’ decision and may therefore increase the likelihood of voluntary compliance, since the losing party will feel fully "heard";³² and (iii) enhance the legitimacy of the arbitral process, even if awards are not reviewed on the merits.³³

In any event, the arbitrators’ reasoning need not go beyond that which was pleaded, argued, claimed and submitted on record. It is in this respect that English courts have held that:³⁴

All that is necessary is that the arbitrators should set out what, on their view of the evidence did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a reasoned award.

However, while the position regarding the facts and "factual reasoning" may be clear, such that arbitrators cannot go beyond the facts on record, the position is more controversial regarding "legal reasoning". This brings into question the limits of legal reasoning and whether the principle of iura novit curia, which prevails in certain jurisdictions (primarily of a civil law background), may apply in the context of arbitration, such that the variant principle of iura novit arbiter may enable arbitrators to stretch the limits of legal reasoning.

In a nutshell, under certain legal systems, the principle of iura novit curia or iura novit arbiter may apply, such that arbitrators would not be strictly bound by the parties’ submissions on legal issues.³⁵ The challenge is that national arbitration laws and institutional rules infrequently address the extent to which arbitrators may ex officio ascertain and apply, sua sponte, the contents of the lex causae. Subject to few exceptions, national laws and rules do not regulate the means through which the task of ascertaining the contents of the applicable laws and rules is fulfilled and to what extent the powers of arbitral tribunals can be stretched in this regard.

A comparative overview of legal systems within Africa and the Arab world reveals that: (a) the expectation is that parties are generally responsible for ascertaining the content of the applicable substantive law; and (b) arbitrators enjoy a discretionary power to research the law and raise legal issues sua sponte. This has even been the subject to several recommendations by the ILA. In its Final Report,³⁶ the ILA stated the following:

[…]

5. Arbitrators should primarily receive information about the contents of the applicable law from the parties.

6. In general, and subject to Recommendation 13, arbitrators should not introduce legal issues—propositions of law that may bear on the outcome of the dispute—that the parties have not raised.

7. Arbitrators are not confined to the parties’ submissions about the contents of applicable law. Subject to Recommendation 8, arbitrators may question the parties about legal issues the parties have raised and about their submissions and evidence on the contents of the applicable law, may review sources not invoked by the parties relating to those legal issues and may, in a transparent manner rely, on their own knowledge as to the applicable law as it relates to those legal issues.

8. Before reaching their conclusions and rendering a decision or an award, arbitrators should give parties a reasonable opportunity to be heard on legal issues that may be relevant to the disposition of the case. They should not give decisions that might reasonably be expected to surprise the parties, or any of them, or that are based on legal issues not raised by or with the parties.

However, the arbitrators’ authority to raise legal issues sua sponte with the parties in view of addressing same in their reasoning is neither absolute nor unconstrained. The arbitrators’ authority is subject to the overarching principle of due process such that arbitrators may not take the parties by surprise when applying the law or reasoning their awards. The parameters of arbitrators’ authority to apply the principle of iura novit arbiter (which remains subject to the "no surprise" restriction) are a fertile terra nova for arbitral scholarship and jurisprudence.

By and large, it should be noted that, when exercising their authority and discretion in addressing legal issues and the related legal reasoning, arbitrators remain subject to three essential constraints: (a) ne ultra petita, (b) transparency and foreseeability, and (c) due process (as inclusive of the right to be heard).³⁷

Thus, there are indeed limits to reasoning of arbitral awards, such that the arbitrators are expected to (i) consider, review and assess the facts and evidence on record; (ii) address what did and did not happen regarding the issues in dispute; (iii) explain how and why they have reached their decision(s); (iv) avoid surprising the parties regarding issues of law or fact that neither party raised and/or either party had no opportunity to address; and (v) measure with precision the degree, extent and scope of reasoning that adequately and sufficiently support their decision(s), without engaging in unnecessary extended reasoning or deficient and incomplete reasoning.

IV. JUDICIAL REVIEW OF ARBITRAL AWARDS IN AFRICA AND THE ARAB WORLD: THE REASONING CHALLENGE AND CHALLENGED REASONING

Judicial review and enforcement of arbitral awards in African and Arab jurisdictions remain topical issues and a fertile land for scrutiny. In the specific context of reasoning of awards, several principles are at play: (a) party autonomy and pacta sunt servanda; (b) finality and res judicata of awards; and (c) non-review of arbitral awards on the merits. The relative equilibrium between these principles and the judicial approach to reasoning in a specific legal system determines the balance that African courts strike when reviewing the reasoning of arbitral awards in the context of setting aside or enforcement proceedings.

While arbitration is an inherently autonomy driven process and a consent oriented mechanism for settlement of disputes, such autonomy and consent do not operate within a vacuum, but exist within the realm of legal systems and territorial jurisdictions. These legal systems and jurisdictions do limit their review of awards to that which is determined to be necessary to strike a balance between the competing interests of finality and justice. African arbitration laws generally provide for a set of limited grounds upon which a reviewing court may vacate or decline to enforce an arbitral award.

In Africa and the Arab world, extensive judicial review of arbitral awards is in regress and amity towards arbitration is generally on the rise, despite certain jurisdictional set-backs. African and Arab States, as is the case with countries in other regions of the world, are witnessing a profound transmogrification towards supporting credible arbitration proceedings. This is indeed a notable trend despite the exceptional temporary set-backs in few jurisdictions.³⁸

Many African and Arab States have ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) and have enacted new UNCITRAL Model Law-based legislation and/or modernized their arbitration laws and legislative framework to align Africa with international practices. That said, de novo judicial review of the merits and the review of arbitral awards on the substance are unwelcomed on the Continent. This is a notable trend in North and Sub-Saharan Africa as well as in the Gulf region.³⁹

As detailed herein above, whether jurisdictions that have adopted the Model Law or jurisdictions within which the OHADA Uniform Arbitration Act applies, the prevailing principle is that the grounds for review of awards are limited and reasoning features as a ground insofar as the parties or the local law did not require reasoning. Thus, it is submitted that reasoning itself presents a challenge to courts when reviewing awards and, at the same time, awards may be challenged on the basis of lack of reasoning absent a consent by the parties or an express legal provision dispensing with the need for reasoning.

By way of example, in Egypt, while reasoning is required as a matter of law unless (i) the parties have dispensed with the reasoning requirement by consent; (ii) a specific law dispenses with reasoning; and/or (iii) the award is an award by consent or on agreed terms, the prevailing judicial trends have confirmed that "insufficient reasoning" is not sufficient to set aside or deny the enforcement of an award. Only "lack of reasoning" qualifies as a ground for setting aside or refusal of recognition and enforcement. This is the practice of the Cairo Court of Appeal which, in various circuits, has held that:

contradiction in the reasons of an award is not considered one of the grounds/causes for the annulment provided for in Article 53 of the Arbitration Law […], because this reason of annulment is a subjective one does not encompass the rehearsal/reconsideration of the subject matter of the dispute. […]⁴⁰

And

[…] it is established that the discretion of the court ruling over the annulment of the arbitral award does not extend to reviewing the award, and assess its appropriateness, or observing the proper evaluation of the arbitrators [….], or the sufficiency of the reasoning of the award for its convey or deficiencies, as the court of annulment does not have power to review these issues as it is not a court of appeal for the arbitral award.[…]⁴¹

In Nigeria, Section 26(3)(a) of the ACA (Arbitration and Conciliation Act 1988) states that "the arbitral tribunal shall state on the award [...] the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms [...]", and Nigerian courts have not placed significant limitations on the reasoning of awards beyond what is stated in the Act. However, the case of Tettrazini Foods Limited v Abbacon Investment Ltd. & Anor (2015) LPELR-25007(CA) provides very helpful insights into the Nigerian courts’ approach to judicial review of reasoning. The Nigerian Court of Appeal held that:

A reasoned award was defined in the case of Bremer Handelsgesellschaft mbH v Westzucker GmbH (No. 2) (1981) 2 Lloyds Rep. 130 at 132-133 thus:

"All that is necessary is that the arbitrators should set out what, on their view of the evidence did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. This is all that is meant by a reasoned award."

From the foregoing, a reasoned award must include the following:

a) Set out the evidence led by the parties.

b) Set out what did or did not happen as between the parties to the arbitral proceedings.

c) Explain why, in the light of what happened, the arbitrators have reached their decision, and

d) State what the decision is.

Looking at the award made by the 2nd Respondent, it is obvious that it lacks the evidence set out by the parties, the strength and failures of each side, no explanation of what happened and how the decision was arrived at, i.e. from what items of the contract. It is therefore clear that the award failed to include the elements required to make the award a reasoned award. This is a breach of the requirement of law and that is also a misconduct. I agree that the award is not expected to be like a court judgment but all that is required is a mention of the required elements to make it a reasoned award. ⁴² [Emphasis added]

Thus, arbitrators shall render their award with balanced factual and legal reasoning, so that the reviewing court is able to review same for the purpose of any challenge or enforcement. That is why all African and Arab countries require an arbitral award to include the reasons upon which it is based,⁴³ and some countries excluded such obligation only in cases where the parties have agreed otherwise, or where the applicable law to the arbitral proceedings does not require reasons to be given.⁴⁴ Other laws have expressly referred to non-reasoning when the award is rendered on agreed terms (i.e. awards by consent).⁴⁵

However, it has been suggested that courts when reviewing the reasoning of arbitral awards should consider that they are distinct from court judgments,⁴⁶ especially that court judgments are normally reviewed on both facts and law and could be subject to an appeal, whereas arbitral awards are not normally reviewed on the merits and not subject to appeal, unless the applicable lex loci arbitri so provides.⁴⁷

The annulment of the arbitral awards resulting from the absence of reasoning or reasoning related issues is not always expressed legislatively. However, some laws explicitly provide that annulment is the penalty for lack of reasoning,⁴⁸ or for contradictions in the reasoning.⁴⁹

That said, from among the trends pertaining to the annulment of arbitral awards and the challenges brought against requests or orders for recognition and enforcement of awards in Africa and the Arab world, one may distil the following judicial trends with respect to reasoning:⁵⁰

a) absence of reasoning (save in cases where (i) parties agreed to dispense with reasoning or requested consent awards and/or (ii) the lex loci arbitri does not require reasoning) is a ground for setting aside or refusal of enforcement and recognition in almost all jurisdictions within Africa or the Arab world;

b) contradictions in reasoning and/or insufficient reasoning is not subject to a uniform rule, while certain jurisdictions do not consider this to be a ground for setting aside or refusal of recognition and enforcement (unless such contradictions are manifest to the extent that they cancel the reasons or render the reasoning inexistent) as is the case in Egypt, other jurisdictions consider contradictory or insufficient reasoning a ground for setting aside or refusal of recognition and enforcement;⁵¹

c) awards are generally not reviewed on the merits and a reviewing court may not, in principle, check the correctness of the reasoning of the arbitrators as is the case in Egypt and Lebanon;52 yet, in few jurisdictions, manifestly wrong legal reasoning may exceptionally qualify as a possible ground for setting aside or refusal of recognition and enforcement as is the case in Ethiopia (in the Supreme Court of Ethiopia (Cassation Bench) judgment of 24 May 2018 regarding the case of Chemin de Fer Djibouto-Ethiopien v Consta Joint Venture);⁵³

d) arbitrators are generally not obliged to address each and every argument raised by the parties, insofar as their reasoning is sufficiently clear and adequate to address the issues in dispute and the parties’ claims and counterclaims such that the losing party and the reviewing court can understand the basis of the arbitrators’ determinations;⁵⁴ and

e) in jurisdictions that adopt iura novit arbiter arbitrators are not barred from raising legal issues sua sponte with the parties in view of addressing same in their reasoning. However, the arbitrators’ authority is subject to three essential constraints: (a) ne ultra petita, (b) transparency and foreseeability, and (c) due process (as inclusive of the right to be heard).

V. CONCLUSION
RECONSTRUCTING REASONING OF AWARDS—PRESENT PROSPECTS AND FUTURE TRENDS

International arbitration is destined to be the premier choice for the resolution of business disputes. However, in order for arbitration to retain its position, legitimacy and status, and enjoy the trust and confidence of users, awards must continue to exhibit good quality reasoning. A well-drafted and adequately reasoned award is a certificate of excellence and a clear pass to a highly reduced risk of setting aside or refusal of recognition and enforcement.

Nevertheless, drafting a well-reasoned award may prove to be a challenging endeavour and a daunting task, yet this task can be greatly facilitated if the parties cooperate with the arbitrators during the proceedings and when the arbitrators have carefully reviewed the case file, are able to correctly distil the issues in dispute, and have a solid grasp of the fundamental principles underlying the reasoning of awards.

Reasoning is indeed crucial to any award, and, as detailed above, is usually expressly required by many national arbitration laws—and most arbitration rules and Africa and the Arab world are no exception. Reasoning is intended to (i) provide assurances regarding the nature and quality of justice that is being served by the arbitrator;⁵⁵ (ii) provide the parties with a satisfactory explanation of the arbitrators’ decision and may therefore increase the likelihood of voluntary compliance, since the losing party will feel fully "heard";⁵⁶ and (iii) enhance the legitimacy of the arbitral process, even if awards are not reviewed on the merits.⁵⁷

As stated in the IBA Toolkit for Award Writing, award reasoning constrains the powers of arbitrators by compelling them to base their decision(s) on the law and facts on record and it reduces the risk of arbitrary decisionmaking. ⁵⁸ The Toolkit goes on to emphasize the need for sufficient reasoning and expressly states:⁵⁹

One way to ensure sufficient reasoning is to refer closely to the list of dispositive issues (as agreed by the parties or determined by the arbitral tribunal) and to address each of the parties’ main arguments on each issue. With regard to the dispositive issues, the award should explain the reasoning according to which the arbitral tribunal applied the applicable law to the relevant facts (including references to the factual record).

As stated above, arbitrators should keep in mind that awards are first and foremost written for the parties and primarily for the losing party; the more solid, clear and adequate the reasoning is, the more likely it will be accepted and the less likely the award will be challenged and set aside or denied enforcement and recognition by any reviewing court.

A survey of the leading African and Arab jurisdictions reveals that reasoning is critical to any arbitral award and that reviewing courts are exceedingly taking a measured approach to reasoning, that is founded on prudent equilibrium between the principles of party autonomy, finality, non-review of awards on the merits and the necessity for clear, adequate and solid reasoning to ring-fence awards against successful challenges.

However, it has been seen that the scope, characteristics, categories and limits of reasoning are not always well defined and addressed legislatively in jurisdictions across the globe, including African and Arab jurisdictions. Nevertheless, it is submitted that among the notable and desired characteristics for the reasoning of arbitral awards are: (i) clarity, cogency, consistency, completeness, specificity and rationality; (ii) being rooted in the evidence on record and grounded in the legal norms governing the merits; (iii) addressing the claims, defences and arguments that are material to the outcome of the case; and (iv) not being overly extended or unwarrantedly narrowed.

That said, arbitrators are not expected to be arbitrary when it comes to reasoning and their authority and powers are not freed from the shackles of legal wisdom, such that arbitrators are expected to: (i) consider, review and assess the facts and evidence on record; (ii) address what did and did not happen regarding the issues in dispute; (iii) explain how and why they have reached their decision(s); (iv) avoid surprising the parties regarding issues of law or fact that neither party raised and/or either party had no opportunity to address; and (v) measure with precision the degree, extent and scope of reasoning that adequately and sufficiently support their decision(s), without engaging in unnecessary extended reasoning or deficient and incomplete reasoning.

Moreover, it has been seen that in Africa and the Arab world, extensive judicial review of arbitral awards is in regress and amity towards arbitration is generally on the rise, despite certain jurisdictional set-backs. Furthermore, it is submitted that courts when reviewing the reasoning of arbitral awards should consider that they are not court judgments that can be reviewed on both facts and law, and so several judicial trends with respect to reasoning were considered and addressed.

By and large, the reasoning of awards in African and Arab jurisdictions is generally aligned with best practices internationally, noting that reasoning of awards remains at the heart of the legitimacy of the arbitral process and central to its success. Moreover, courts in African and Arab jurisdictions are increasingly becoming experienced and nuanced in their measured review of arbitral awards. It is submitted that (i) as more and more arbitrations proliferate across African and Arab jurisdictions, (ii) as more and more useful information and communication technologies are integrated within the process to assist arbitrators, and (iii) as more and more arbitrators observe the requirements of good reasoning, the less and less awards will be successfully challenged, and more trust and confidence in the process will eclipse isolated incidents of bad reasoning.

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