ARBITRAL AWARD:-

Part I- Framework
1. Cases are decided by majority of vote (Convince 2 out of 3 arbitrators in case
there is a panel of three)

2. Award shall deal with every question submitted and shall rely state the
reasons upon which it is based.
Q. If you have many arguments, do you have to address every argument or do
you just address the main question? – Answer the main question as it pretty
much answers the other sub arguments.
- Reason must be adequate (strong or weak does not matter) as long as it does
not violate the law.

3. Provide dissenting opinion

- You can agree with part of the opinion, not as a whole.
Q. How else can you deal with dissent without drafting a whole different
opinion? –By concurring (concurrence), by footnoting.

4. Nothing can be disclosed without the consent of the parties

Part II: Drafting the Award

Types of Arbitral Awards
1. Final Award
- a written award conclusively deciding all issues presented to an arbitral
tribunal for resolution.

2. Partial Final Award

- a final determination of some, but not all, of the issues presented.
- Issuance of a partial final award normally will prohibit arbitrators from
reconsidering the merits of the issues decided.
- Faster solution

3. Interim Awards
- sometimes used to issue a document the arbitrators do not intend to be final
but only advisory
- provisional matter that prohibits the destruction of the building pending the
arbitration proceeding

Essential Contents of an Award

- The Court must be able to understand the dispute and make sure that the award
is worthy.

FRAMEWORK
- Paragraphs must not be robust. Paragraphs must be clear, concise, and
methodical.

1. Parties
2. Contract
3. Arbitration Clause
4, Appointment of Arbitrator
5. Dispute Details
6. Procedural History (procedure followed by the parties during the course of
the proceedings as well as precedents)

SUBSTANTIVE PART
- Take up all the broad questions and issues.
Example: Question 1- Is there a breach of contract? This must be followed by
sub questions like “Arguments by Claimant”, etc.
1. Setting out the issues
2. Arguments of the Party on each issue
3. Decision of each issue
4. Interest and Cost

DISPOSITIVE PART
- The most important element of an award.
- In this part, you basically have to bring everything together.

Q. While dealing with each issue, do you have to reject the argument of a party
specifically? – Not necessarily. If you are silent but you have raised it, it means
you have rejected. In the dispositive, you add a line, any argument not
specifically addressed in rejected.

SUBSTANTIVE REQUIREMENTS
- https://www.arbitration-icca.org/news/2020/499/introducing-does-a-right-to-a-
physical-hearing-exist-in-international-arbitration-and-calling-for-
contributions.html
- Has to resolve all the issues.
- disregard extraneous issues going beyond the jurisdiction of the arbitrator.
- be final and unconditional; be certain and capable of performance by the
parties;
- Ultimately, be capable of enforcement by the courts; and
- Not be contrary to the public policy of India.
- Award must be cogent, complete, certain, final and enforceable.

Q. What if an award is well reasoned, yet there is ambiguity regarding the

operative part of the award? Is it advisable to explicitly mention the operative
component?
- You need to make sure your dispositive responds all questions in a clear and
precise manner. No large question must be left open. Your dispositive should
read. The Arbitral Tribunal resolves:
1. xxxx
2. xxx
3. Party a shall pay US$XXX
4. Party a shall pay interest xxx
5. The award will be paid within 30 days
6. All arguments not addressed are rejected

DRAFTING TIPS
1. Be neutral
2. KISS Rule (Keep it simple and stupid)
3. Use plain English
4. Be specific and precise
5. Use a chronology
6. Don’t skip steps in your reasoning

Q. Does being neutral mean that every time you negative the argument of a
particular party, you must substantiate it with proper legal reasoning? Or do you
need to do something more in order to keep it neutral?
- Neutral means avoid using words or phrases that show bias. It does not mean
that you cannot make adverse findings at all.

7. Point to the evidence on the record and be neutral

Q. When facts are in dispute how are we supposed to deal with it?
- The party making the fact has the burden to meet that fact. If you can’t make a
finding you dismiss it.
Example: “The claimant has not made the claim therefore argument dismissed”
8. Don’t go beyond the record (limited role of inferences)

Q. Is it mandatory for the awards to be published online, especially where

parties have concerns about confidentiality of proceedings?
- Awards publication will depend on whether or not the Rules permit it so check
the arbitral rules applicable to your dispute.

PAY ATTENTION TO DAMAGES

POST AWARD ISSUES

Functus Officio Role of Tribunal
- Functus officio refers to an officer or agency whose mandate has expired, due
to either the arrival of an expiry date or an agency having accomplished the
purpose for which it was created. In this case, the role and duties of the
arbitration tribunal. Their powers lies with them even after the arbitration
proceeding is over in case there are any clerical errors that need to be clarified.
 Part III: Role of Precedent

Q. Can an arbitral award from another tribunal be used as a precedence?

- Arbitral awards before a court or from another tribunal cannot be used as
formal precedence since there is no "higher" mandate but can be referred to for
persuasive value (assuming they are well done)
THINGS TO KEEP IN MIND-

SECOND GUEST LECTURE

- An award is the final decision which an arbitrator will pass in the arbitration
proceeding.

Things that must be kept in mind-

- Language must be simple, clear, and concise.
- Keep your sentences short.
- Straight to the point. No repetition.

2015, 2019 – two amendments to 1996 Act of Arbitration and Conciliation

What is an award? Section 2 c is not very helpful (it just says that award
includes interim award)
Award is a final decision which an arbitrator will pass in the proceedings going
on before him. (Like a court decree puts an end to a trial)
Law doesn’t mandate any form or format, but certain basic requirements are
given in the Act. The provisions in the act aren’t sufficient to understand the
procedure of drafting.
Two possibilities when an award is granted:
i) Both parties may accept the award
ii) Aggrieved party may challenge the award (scrutiny in the court under
section 34)
The award must be drafted in such a way that it stands under scrutiny. All
formalities should be taken care of and should read well.
Principles of good drafting:
 Language must be simple, clear, lucid, concise, and precise. Easily
understandable, short sentences. Don’t repeat your sentences, even in the
final submission.
 The draft can be broken into parts and can be made in a structure.
Numbered paragraphs add to the flow.
 Command over the language.

Specifics of drafting an award:

1. Award has to be in writing (Section 31(i)) to keep record.
2. Award must always have a title, normally at the top. (final, interim, consent
– mention the type) to distinguish the award from normal orders.
3. No specific rules for structure. These are suggestive ones:
i) On stamp paper of 500 rupees
ii) Below that, the cause title (before the learned sole arbitrator xyz, names
of the parties ie. claimant and respondent, addresses of the parties)
iii) Below that, the nature of the award (interim/final)
iv) Names of the legal representatives of these parties
v) Body of the award – starts with brief description of the parties
vi) Brief description of the dispute as a whole in 2-4 lines
vii) Mention the arbitration agreement between the parties. Arbitration clause,
provisions for the arbitrator and panel, seat of the arbitration, if there is
institutional arbitration, specify the institution, else mention ad hoc
arbitration. Under section 34 (2) (a) (iv), we can have arbitration without
an arbitration clause
viii) Provide a brief summary of undisputed facts leading up to how the
arbitrator was appointed just to give a background eg if one party
nominated and the other accepted, or the court appointed, etc. If not
given, it falls short under section 34 (2) (a) (iii)
ix) A summary of proceedings eg. No. of sessions held, details of the
pleadings, evidence, interim orders, cross examination, final matter heard
and written submissions filed, along with dates of all events. If not
mentioned, it falls short under section 34 (2) (a) (iii) (it must be shown
that full opportunity was given to present case)
x) Set out detailed facts in a chronological order
xi) Framed issues (essential points of determination which need to be proven
and judged on) (points on which both parties are at locked horns, but only
on main and larger points and not the finer smaller clashes) eg. Specific
performance, mention of delay, contractual issues
xii) Issue wise submissions and findings. Submissions can include disputed
facts. Things to consider - manner of dealing is that first mention the
issue, then state the pleadings for each side, then give oral and
documentary evidence to prove the point on behalf of the party
represented (you cannot argue what is not listed in the pleadings and
won’t be accepted in final hearing), mention cited laws and judgements,
spell out your decision in a paragraph or two (basically: facts, evidence,
reason, law) Everything argued has to be dealt with – either accepted or
rejected, but cannot be ignored. This exercise has to be done issue wise.
Reasoning is required as mentioned in Section 31(b) of the act.
Unreasoned awards have been rejected in the past.
xiii) Last issue normally deals with costs.
xiv) Three main grounds that you cannot fall foul of – 34 (2) (b) (i), (ii) and
(A)
 a) Whether a dispute is arbitrable or not (Categories that cannot be
arbitrated – matrimonial, insolvency, mortgage, tenancy, trust)
b) Cannot be in conflict of Public Policy of India (fraud, corruption,
conflict with basic notions of morality an justice, violation of section
75 and 81 (confidentiality and admissibility as evidence in
conciliation) (Nariman Judgements – Tsangyong v national highway
authority 2019 , associate builders v delhi development authorities
2015)
c) Vitiated by patent illegality appearing in the face of the award eg. If
the award contains no reason, or a contract is not construed as a fair
minded person would
xv) Section 29 - 2019 amendment says 6 months to complete pleadings, 12
months for the arbitrator, 6 months extension can be asked for, if
proceedings still not complete then the court can either extend the time,
or reduce the arbitrator’s fees or replace the arbitrator if the delay is
caused due to the arbitrator.
xvi) Communication of the award by the arbitrator to the parties is done by
giving the parties a signed copy and not their advocates. On receiving,
time limit of 3 months to file a petition starts.