Validity of arbitral awards – country reports
The IBA regularly conducts practical studies intended to provide assistance to users of international arbitration. This country-by-country study is no exception. It is intended to be a valuable tool for assisting arbitral tribunals to draft a valid and enforceable award under the New York Convention, based on the local requirements of the lex arbitri.
The observation that gave rise to this study is that it is common practice for practitioners to sit as arbitrators in countries they are not qualified in and render decisions based on lex arbitri and/or substantive laws they may be not familiar with.
While for the substantive part of the decision under most regimes the responsibility lies on the parties who bear the burden of proof (even though there are countries where the principle iura novit curia can overcome the agreement of the parties), for the procedural part it is on the Arbitral Tribunal to make sure that they are rendering a valid and enforceable award based on the lex arbitri.
A number of general toolkits have been created over the past few years aimed at assisting practitioners in drafting valid arbitral awards (among the most hepful, a special mention is due to the Toolkit for Award Writing by the IBA Arb40 Subcommittee). They give valid assistance to practitioners but, having a universal approach, they inevitably have to use formulas such as 'National arbitration legislation at the seat of the arbitration and the place of enforcement (if known) might also impose form requirements that need to be followed by the arbitral tribunal and should be checked carefully' which ultimately leave again the issue on the Arbitral Tribunal’s shoulders.
The idea of this guide is to run the last mile and to identify, through country-by-country questionnaires, the requirements of national laws which, if not carefully considered, may put the arbitral award in danger of either setting aside or non-enforcement under the New York Convention.
Those requirements go from the very title of the award, to notification issues, tax issues and to content aspects. The number of local peculiarities can be significant.
The idea is to create a very practical instrument with simple and easy to follow indications of the basic elements needed to render the award. Of course, the guide prepared by qualified local practitioners does not substitute legal advice, but certainly provides good initial guidance and could represent an invaluable tool for any arbitration practitioner conducting a case in any of these jurisdictions.
Tyler B Robinson
Co-Chair of the Subcommittee on Recognition and Enforcement of Arbitral Awards