I had the privilege to be a panelist at California International Arbitration Week in Los Angeles on March 11, 2025, joining a panel of distinguished colleagues in a program on award drafting presented by the International Committee of the College of Commercial Arbitrators. Below is a slightly edited and expanded version of my remarks at that event. For quite some time I have been unable to find the time to post on this site as frequently as I would like, and award drafting has been a major contributor to the drought. I hope you will enjoy these remarks.
A reasoned award may have many audiences. So the drafter of the Award is well advised to identify those audiences and chart their objectives and agendas before she begins to write. I speak here of the drafter of the analysis sections of the Award, who may or may not also be the drafter of preliminary summaries of the proceedings and the contentions of the Parties, these being portions of the Award, if the setting calls for such preliminary summaries, the drafting of which might be delegated to a Tribunal Law Clerk acting in such a capacity with the consent of the Parties.
The first audience for the draft is of course the non-drafting members of a three-member tribunal. In an ideal world (not always the case in practice) the tribunal will have deliberated to a consensus point of view or at least a majority position on each claim for relief – as to liability, and remedy in general if not also specifically the sum of damages in a damages case. The tribunal will have discussed the need for and timing of submissions on costs, the adequacy of the parties’ submissions on all issues but particularly on issues that often are neglected by the parties such as interest (pre-award, post-award, post-judgment, at what rate(s), and with what compounding if any). Deliberations may produce ideas for remedies, especially “equitable remedies” in common law parlance, that are not fully aligned with the relief articulated in the Claimant’s submissions. The deliberation is the time when such remedies, if they appeal to the tribunal, should be formulated in sufficient detail that the tribunal might reach a decision about inviting the Parties to submit further comments on the tribunal-proposed solution. Ideally this will be at a time before the clock begins to run, under the applicable rules, for delivery of the Award. And this will be a time when the first audience, the other members of the tribunal, may have more flexibility than they might have later on to entertain remedial solutions that are not strictly within what the Parties have presented.
It may be that one or another of the non-drafting arbitrators is not quite convinced of the correct position and/or the correct reasoning on one or more issues. It may be, unfortunately, that one arbitrator is non-committal due to inadequate preparation. This ought not to happen but it can do so; and for this arbitrator the drafter’s draft may need to persuade and may need to be more heavily annotated to key portions of the record than might otherwise be felt necessary. It also occurs that the drafting arbitrator hails from a different country and a different legal culture than the non-drafters – resulting in different a priori expectations about the structuring of the award even if there is a general consensus about the outcome. This is the type of issue that the astute tribunal chair will begin to tackle early on – whether by Zoom or over lunches and dinners during hearings. Here is a good point to mention the possible utility to the drafter of inviting written case analysis outlines from the non-drafters. The time invested may enable the drafter to better appreciate the views of her colleagues, to assimilate those views into the draft, and to identify in a timely way any issues that might ultimately be a basis for a concurring or dissenting opinion. The desirability of identifying such issues at the outset of the drafting process is obvious.
Let us move along now to a few words on the audience that consists of institutions that scrutinize awards before issuance, namely, “the Boss is always right”; the Parties selected this “Boss”; and the resulting regimentation of form – Parties, Tribunal, Proceedings, Contentions – is an albatross hung about all of our necks.
As to the next audience – the Parties – in the form of a question: Is it true that we mainly write for them, and especially for the loser who, if satisfied that all of its arguments were carefully and eloquently rather than peremptorily dismissed, will be inclined to lick its wounds, comply with the award, and move on? The answer must be “sometimes.” Because it is only sometimes, and perhaps increasingly rarely, that high-stakes business and investment disputes proceed with the same equanimity between the parties as did the negotiation of the contract or underlying investment treaty.
But if you as a tribunal know from an early stage that this will be a scorched earth case, bound to be fought on to the annulment or set aside stage and even through additional appeals, is there much you would do differently? Probably not. Essentially the same effort you ought to make to address in a thorough way each of the losing party’s arguments is the baseline level of effort to be exerted to satisfy a court of primary jurisdiction that there are no grounds under its law for annulment. And one says “baseline” level of effort because it is your charge as a tribunal to be sensitive to particular standards for set aside in the primary jurisdiction court, and also to idiosyncratic grounds to refuse recognition that might infect proceedings in other places where your award may have to be brought for recognition and enforcement. By “idiosyncratic” I mean to invite Tribunals to be watchful about what happens to awards in countries that, while they may be parties to award enforcement conventions, may be hostile to awards from particular foreign jurisdictions or may be subject to influences from a losing party or its allies or proxies. Maybe this point can be summed up by saying that it will often be inadvisable to give short shrift even to weak arguments because one thinks the award is relatively immune from de novo review.
One more audience deserves mention, and that is the “public,” consisting mainly of practicing attorneys and arbitrators who might read the Award or read about the Award in publications that follow our work. If you know that the Award will be filed on a public court docket, especially one in a prominent arbitration center to which Jus Mundi applies its algorithms, or if you know that any confidentiality restrictions in your case, whether by law, rule or order, do not prevent the Parties from making public disclosure of the Award, the tribunal should consider the award’s messaging for this broader community. This may simply take into account the fact that awards are increasingly being sought out by counsel for citation as precedent on procedural and substantive issues. But it may also entail messaging in the Award about the conduct of the Parties and their counsel, how any misconduct was treated, and how such treatment might serve as an example for other tribunals and a contribution to arbitration community discussion of evolving best practices.
Finally, two more topics: procedural fairness, and equitable relief.
There can be a temptation to write at length a recital of the procedural history of the case. But unless this is a matter of necessity in the institutional setting of the arbitration (see “the Boss is always right,” above) it is debatable whether it is worthwhile to do this in the award. It may worthwhile to do this in the preparation for writing the award, so that in a case with volumes of submissions an obscure but significant matter is not overlooked in the award. But this can be a step in preparing to write rather than in writing, unless the writing is enforced as a drafting protocol by the institution. Where the tribunal should concentrate its energy, in regard to procedural fairness, is on the losing side’s actual procedural grievances — and these will often have been stated expressly, as in a protest against an adverse ruling on a procedural matter. Here the tribunal – while being mindful not to be seen as overly defensive by a reviewing court – may want to speak clearly and directly to the reviewing court especially if the procedural order in question did not fully articulate the tribunal’s reasons.
As to equitable relief, leave no detail unattended. Courts are not generally in the business of reading arbitral tea leaves or carrying out the spirit of an arbitral injunction by putting flesh on a skeleton. Your injunctions and orders for specific performance should be written as clear judicial mandates, offering clear standards for compliance that will leave neither the Court nor the obligor of the injunction with any arguable uncertainty about whether there has been compliance. “Enforcement granted” and “vacatur denied” should be sufficient for your equitable relief award to become a judgment for equitable relief that is readily enforced according to the powers of the enforcing court.
MY “PET PEEVE”: Unwarranted rigidity of Award format. Beyond what format contentions are imposed upon us, Award-writing should be creative not formulaic.