Award writing

Amrit Rajapakse MCIArb

Types of decisions made by arbitral
tribunals
• Directions
• Rulings
• Decisions
• Orders
• Awards

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AA 1995
• “Rule” on its jurisdiction (sec. 11(1))
• “Order” in relation to arbitrator challenge (sec. 10(4))
• “Order” for interim measures of protection (sec. 13(1) – may be enforced
through High Court
• “Order” for deposit of security (sec. 29(3))

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What is an “award”?
• An “award” is the decision of the arbitrator based on the submissions
made in an arbitration
• The award is usually the final outcome of the arbitration process
• Section 50 of the Arbitration Act 1995 (AA 1995) defines an “award” as “a
decision of the arbitral tribunal on the substance of the dispute”
• Part VI of the AA 1995 deals with awards

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Different types of “awards”
• Interim awards
• Partial awards
• Final awards
• Awards on agreed terms (sec. 14(2))
• Default awards
• Costs awards

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“Final” award
• In arbitration practice, the expression “final” has two meanings in
relation to awards
• It may refer to the fact that the award determines all the outstanding
issues in the arbitration, i.e. it is the “final” or end of the arbitration
• Alternatively, it may refer to the finality of the decision, as in sec. 26 of
the AA 1995:
“Subject to the provisions of Part VII of this Act, the award made by the arbitral
tribunal shall be final and binding on the parties to the arbitration agreement”

• For example, a “partial” award that determines some, but not all, of the
parties’ disputes will be “final” as to those disputes it deals with

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Exceptions to finality of award
• After the arbitral tribunal makes its final award, the tribunal becomes
“functus officio” and can no longer make any decisions
• However, this is subject to certain exceptions found in sec. 27 of the AA –
• Correction of computational / clerical / typographical errors
• Modification of the award
• Interpretation of the award
• Additional award
• Remission of award by Court (sec. 36)

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Requirements for a valid award

Formal requirements

Substantive requirements

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Formal requirements
• Made in writing
• Signed by the arbitrators (or majority)
• Reasons (unless parties agreed no reasons be given, or award on settled
terms)
• Date
• Place
• Notification (publication)

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Substantive requirements
• Cogency: the award must be based upon, and show, convincing, persuasive
and consistent reasoning
• Completeness: an award must deal with all matters in issue, and no more
• Certainty: an award must not be ambiguous: it must leave no doubts as to
the intention of the arbitrator, or what is to be done by one or both parties
• Finality: an award must not leave an opportunity for re-opening the issues
resolved by that award
• Enforceability: an award must be capable of being enforced
E.g., if the award is for a sum of money, then it must be clear what amount is
awarded, what is to be paid by whom and to whom, and when

• Jurisdiction: an award can only include matters which are within the
arbitrator’s jurisdiction in respect of that arbitration

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Grounds of setting aside awards
• Incapacity of a party to the arbitration agreement
• Arbitration agreement not valid under the law applicable to it
• No proper notice of appointment of arbitrator or of arbitration
proceedings, or otherwise unable to present their case
• Award deals with dispute not contemplated by / not falling within the
terms of the submission to arbitration, or contains decisions on matters
beyond the scope of the submission to arbitration
• Composition of arbitral tribunal or arbitral procedure not in accordance
with agreement of the parties or the Act
• Subject matter not capable of settlement by arbitration in Sri Lanka
• Contrary to public policy of Sri Lanka
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Tips for Withstanding Scrutiny
1. Defective arbitration agreement
2. Denial of procedural fairness
3. Excess of jurisdiction
4. Improper arbitral
composition/procedure
Quote the arbitration agreement, give its
applicable law and confirm validity
Give a full procedural history explaining
all steps taken to ensure procedural
fairness
Explain the scope of the arbitrator’s
jurisdiction. Assess Issues to be decided
within jursidiction. Give a statement that
you stayed within this scope
Within the procedural history, show
exactly how the tribunal was appointed
with procedurally correctness
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The structure of an award
• Every award should have a beginning, middle and end
• The beginning consists of the heading and the recitals
• The middle has three parts – the narrative, the issues and the reasons
and conclusions
• The end is the operative part of the award and contains the operative
directions and/or declarations and the attestation / signature of the
arbitral tribunal

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Expanded structure
A. Heading
B. Introduction and background to the claim
B1 Identification and jurisdiction Beginning
B2 Procedural history
B3 Background to the dispute
B4 The Claims (Claimant and Respondent)

C. The Issues between the parties

D. Analysis / findings / reasons / decisions, issue by issue
E. VAT implications Middle
F. Interest
G. Costs
H. “Operative” section
I. Reserved matters End
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J. Signature and formalities

CIArb Practice Guideline on Drafting
Arbitral Awards (2016)
• Awards should be written in plain and simple language as far as
possible, avoiding technical and legalistic expressions
• Each paragraph should be continuously numbered from the start to the
finish
• Pages should be numbered
• Use informative headings and sub-headings
• Include a table of contents if the award is lengthy
• Avoid attaching documents to the award / referring to documents
attached to the award unless required by the law of the seat

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Three stages of drafting process

The Technical The Analytical The Final

Draft Draft Draft

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Technical draft
The Technical Draft is your first draft:
• Identify the parties, representatives and witnesses
• Set out the dispute neutrally ending with the Notice of Arbitration
• Introduce the Contract and the Arbitration Agreement
• Identify the applicable laws and rules
• Set out the Procedural History – start at the Notice of Arbitration, cover all procedural
matters and orders and the hearing, and end with the publication of the Award
• Quote anything relevant as the Award must be a stand-alone document
• Carefully proof read your Award - good grammar, sentence structure, formatting,
ensure it is clear, concise, and free from errors or ambiguities
• Usually started at an early stage, this draft does not contain any material decisions or
analysis of the merits

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The Analytical Draft
The Analytical Draft is your second draft:

• Normally started as Preliminary Issues arise and finished after the hearing if there
are Closing Statements or after the Post Hearing Briefs if there are any

• First consolidate the Issues in Dispute, preferably with the Parties at the
Preliminary Meeting

• Second, analyse the facts and law pertinent to each issue

• Finally, come to a reasoned decision on each issue

• Conclude with the decision on liability, quantum and any interest and costs
implications for the Issue

• Ensure that all Issues are dealt with and nothing else

• Populate the Technical Draft to form the Analytical Draft

• Some arbitrators limit this draft to liability and deal with quantum and costs at the
Final Draft stage. This is fine but may lead to logic and maths errors or omissions 18
 The Final Draft
The Final Draft is your third draft:
• Normally started after any submissions on costs, particularly where a settlement
offer is made
• Summarise all decisions on liability
• Summarise all financial decisions and make sure there are no errors
• Give a final decision on costs, taking into account any interim decisions on costs
and any Issue’s cost implications
• Carefully consider any settlement offer as it may change your perspective on the
costs
• Deal with all the Award matters and write up a clear and concise summary of the
liabilities and financial aspect of the award
• Then finalise by stating that the Award is final, that it has been rendered in the
specified seat and sign and date it carefully
• Certain seats have specific laws and rules concerning the finalisation of an award,
which the arbitrator should be aware of 19
Header page
• Every good Award starts with the header page
• On the header page, it is important to ensure that:
• The Applicable Law and Rules to the Arbitration are stated
• The Parties are named correctly to avoid issues of enforcement against a
particular party
• The Award is correctly designated as Final, Partial, Final save as to costs, etc
(take care to use the correct title)
• You may give further information, such as the names and addresses of the
parties, representatives and/or the arbitrator (optional)

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IN THE MATTER OF AN ARBITRATION UNDER THE ARBITRATION ACT
NO. 11 OF 1995
AND
IN THE MATTER OF AN ARBITRATION UNDER THE ICLP ARBITRATION
RULES 2021
BETWEEN
BIGCO PLC (Claimant)
AND
SMALLCO (PVT) LTD (Respondent)

FINAL AWARD
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Introduction
• The parties’ and representatives’ details
• The contract
• The arbitration agreement (quote in full)
• Arbitration rules that apply
• The seat
• Date of notice of arbitration
• Date and details of nomination/appointment
• Matters referred and redress sought
• Details of any challenge to jurisdiction and arbitrator’s conclusion

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Procedural history
• Start with the date of the Notice of Arbitration
• The process and constituion of the arbitral tribunal
• Dates of relevant submissions
• Dates of any meeting(s) and attendees
• Dates of hearings and attendees
• Details of any particular procedural problems
• Other interlocutory matters
• End with the date of publication of the Award

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Analysis section
• Set out a section for an initial analysis to identify/confirm the Issues in
Dispute
• Bear in mind the different types of Issue you may be faced with:
Preliminary/Procedural; Evidential; Meritous
• Set out a section for each Issue with a space for a Title and the FLAC
Analysis (Facts – Law – Application – Conclusion)
• End with conclusions on liability, quantum, and include any cost or
interest implications

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Interest section
• Set out a section to pull together all of the Interest awards given possibly
with different start (or end) dates
• Establish the power to award interest and give your reasons for the
awards
• Finally, set out a section to summarise the interest awarded where the
calculable interest will be fully calculated and the non-calculable interest
will be fully defined

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Costs section
• Set out a section to pull together all of the cost awards given
• Establish the power to award costs and consider the reasons for your cost
award
• Note that this cannot be fully completed until the cost submissions at the
end
• Finally, set out a section to summarise the costs awarded

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Operative section / “Award”
This section will usually commence with wording such as ““For the reasons
contained herein I order, declare and direct that: …” and then set out –
• Any declarations made
• The quantum for each Issue
• Any interest to the date of the Award, by Issue
• Any costs of the arbitration, clearly identified and apportioned
• The parties’ costs, clearly identified and apportioned
• The total amount to be paid by the failing party to the other party, inclusive
of interest and costs to the date of the Award
• The payment date ordered by the arbitrator
• Non-compliance interest, and the amount that it applies to, the method of
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calculating the interest and the rate
Reserved matters, signatures etc
• A general statement that the arbitrator has read all the submissions put
to him/her, considered all evidence and dealt with all Issues in Dispute
• That this is a Final Award, OR any matters left for a subsequent Award
• The place of signing and the seat of the Arbitration
• The signature section set out as required by the procedural law
• The signature and date (refer lex arbitri)

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