FACULTY OF LAW

UNIVERSITY OF IBADAN

A SEMINAR PAPER PRESENTED TO THE LL.M CLASS OF 2013/2014

SESSION

TOPIC: ARBITRAL AWARDS: TYPES, FORMS, SUBSTANCE, REMEDIES

AND RELIEFS

COURSE TITLE: LAW AND PRACTICE OF ALTERNATIVE DISPUTE

RESOLUTION 2

COURSE CODE: LPI 730

BY

OKORO, GRACE UGOMMA

MATRIC NO. 181689

JANUARY, 2015

1
TABLE OF CONTENT

TITLE PAGE 1

TABLE OF CONTENT 2

TABLE OF ABBREVIATIONS 3

1.0 INTRODUCTION 3

2.0 THE AWARD 4

3.0 THE MAKING OF THE AWARD 5

4.0 VALIDITY OF AWARDS 9

5.0 CATEGORIES/TYPES OF AWARD 22

6.0 RELIEFS AND REMEDIES INHERENT IN AN AWARD 28

7.0 CONCLUSION 32

BIBLIOGRAPHY 33

TABLE OF ABBREVIATIONS

2
 SCC: Stockholm Chambers of Commerce.

AAA: American Arbitration Association.

ICC: International Chamber of Commerce.

LCIA: London Court of International Arbitration.

ICSID: International Centre for Settlement of Investment Dispute.

CIETAC: China International Economic and Trade Arbitration Commission.

ICDR: International Centre for Dispute Resolution.

WIPO: World Intellectual Property Organisation.

UNCITRAL: United Nations Commission on International Trade Law.

1.0 INTRODUCTION

In any organised society there are courts which settle differences between people in that
society. If there is no such court system, there will be chaos. Even in primitive societies there
are courts to settle disputes. The courts can coerce anyone to appear before it, failure of
which will result in some sort of sanction1.

Arbitration is a way of settling disputes. It is a situation where two parties decide before a
dispute arises that if that dispute arises between them, they will settle the dispute in a
particular manner. It is a mechanism according to which the disputing parties appoint a
person or a number of persons to settle a dispute that may arise between them. Even if they
had not thought of it initially, they can do so within the course of the contract at which they
have the misunderstanding. It is a method of settling disputes under which the parties agree to
be bound by the decision of a third party whose decision is, in general, final and legally
binding on both parties. This process derives its force from the agreement of the parties, with
the aid of the courts which enforce these decisions.2

1
Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus,
Lecture Notes on Law of Arbitration I & II.
2
Ibid.

3
 The term “international commercial arbitration” has never been defined. However, there is
fairly clear agreement on its constituent elements. The most important of the three words is
arbitration itself.

Arbitration, is therefore defined as a reference of a dispute between not less than two parties
for determination after hearing from both sides in a judicial manner by a person or persons
other than a court of competent jurisdiction3.

The decision of an arbitrator is called an award. If it is provided that in the event of a

disagreement between the arbitrators, the dispute is to be resolved by a third person, then
such a person is called an umpire, and his decision is also called an award. It is to be noted
that the current Nigerian Arbitration Law makes no provision for an umpire, but for a third
arbitrator who unlike an umpire, cannot alone hand down an award.

The distinction between an umpire and a third or presiding arbitrator is that an umpire is
usually present at the arbitral proceedings from their commencement. He does not participate
in the proceedings but will only be an interested listener. Where the two arbitrators disagree
he then takes over from them and hands down an award. A third (presiding) arbitrator, on the
other hand, commences the proceedings with the other two, and they usually take their
decisions, including the award by a majority. In some jurisdictions, the third arbitrator is
empowered to take the decision himself whenever they fail to arrive at a majority decision 4.
Arbitral awards often involve matters of general legal interest, their publication contributes to
the development of the law, both of international commercial arbitration and of the
substantive law in question. However, publication brings in question the confidentiality of the
arbitration5. This seminar paper shall be looking at the different types of arbitral awards,
forms, types, substance, as well as reliefs and remedies, while peeping at the stance of some
Arbitration Institutions and National laws.

2.0 THE AWARD

Undeniably, there is no internationally accepted definition of the term arbitral awards. None
is to be found in the International Convention dealing with arbitration, especially the New
3
Halsbury’s Laws of England, 4th Edition, Vol. 2, P. 255; Misr (Nig.) Ltd v. Oyedele (1966) 2 ALR Comm.
157.
4
Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus,
Lecture Notes on Law of Arbitration I & II.
5
Aboul-Enein, M.I.M, “Dispute Settlement in International Trade, Investment and Intellectual
Property” prepared at the request of the United Nations Conference on Trade and Development (UNCTAD)
available at www.unctad.org and retrieved on 09/01/2015 at 9.00am.

4
 York Convention which is specifically directed to the recognition and enforcement of awards.
The nearest the New York Convention comes to a definition is:

“The term ‘arbitral awards’ shall include not only awards made by arbitrators
appointed for each case but also those made by permanent arbitral bodies to which the
parties have submitted”6

One of the difficulties in finding an acceptable definition is that there are many kinds of
awards in the arbitral process. There was a proposal to adopt a definition of awards which
dispose of some issues only and leave others until later. The proposed definition was
followed thus: “’Award’ means a final award which disposes of all issues submitted to the
arbitral tribunal and any other decision of the arbitral tribunal which finally determines any
question of substance or the question of its competence or any other question of procedure
but, in the latter case, only if the arbitral tribunal terms its decision award”.7

As this proposed definition shows, the need to distinguish between awards which are final
and those which are not, is a complicating factor, the possible solution of defining each
separately was not adopted.8

3.0 THE MAKING OF THE AWARD

The period within which the award is to be rendered may be measured from the time the
arbitral tribunal was formed9, the terms of reference were adopted, 10 the case was submitted
to the arbitral tribunal,11 or the closure of the proceedings.

The time limits specified must be considered as a goal rather than as strict limits. Time limits
that are measured from the date when the case is transmitted to the arbitral tribunal, or its
equivalent, may often turn out to be too restrictive, especially in international commercial
arbitration. Therefore, institutions that have such time limits invariably have a mechanism by
which that time limit can be extended. The extension is normally made by the institution on

6
New York Convention, Art. 12
7
Broches, (1984) “Recourse Against the Award; Enforcement of the Award, “”UNCITRAL’s Project for a
Model Law on International Commercial Arbitration, ICCA Congress Series No. 2, P. 208.
8
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial Arbitration, London:
Sweet and Maxwell, (3rd edition, paragraph 8-16.
9
See, e.g., CIETAC Arbitration Rules, Article 52 (“nine months from the date on which the arbitration tribunal
is formed”).
10
See, e.g., ICC Arbitration Rules, Article 24 (six months).
11
See, e.g., Stockholm Chamber of Commerce, Article 33 (“six months as from the date when the case was
referred to the Arbitral Tribunal”).

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the recommendation of the arbitral tribunal, rather than by the arbitral tribunal itself. An
example is found in the ICC Arbitration Rules, Article 24:

“(1) The time limit within which the Arbitral Tribunal must render its final Award is
six months. Such time limit shall start to run from the date of the last signature by the
Arbitral Tribunal or by the parties of the Terms of Reference or, in the case of
application of Article 18(3), the date of the notification to the Arbitral Tribunal by the
Secretariat of the approval of the Terms of Reference by the [ICC] Court.

(2) The [ICC] Court may extend this time limit pursuant to a reasoned request from
the Arbitral Tribunal or on its own initiative if it decides it is necessary to do so”.

Moreso, the parties in the arbitration agreement are also competent to prescribe a time within
which the arbitral tribunal is expected to hand down an award, if the tribunal is not able to
hand down the award within the time, it can extend the time with the consent of both parties.
The extension can be done retrospectively 12. If the parties do not give their consent, it seems
that the arbitral tribunal can extend the time as the arbitral tribunal can conduct the
proceedings in such a manner as it considers appropriate so as to secure a fair hearing13.

Where a time limit for the making of the award is found in the arbitration agreement or rules
governing the arbitration, the English Arbitration Law of 1996 permits the court to extend it.
However, this may be done only after “exhausting any available arbitral process for obtaining
an extension of time.”14

If there is no time limit for making the award in the arbitral agreement, it seems that the
arbitral tribunal is obliged to make the award within a reasonable time having regard to the
circumstances of the particular proceedings15.

Very few arbitration laws have time limits for the award, since it is difficult to provide a
general rule for all cases. The ICDR’s Arbitration Rules and the WIPO Rules do not impose
any time-limits for delivery of the award. The arbitration law of Peru does set a time limit of
twenty days after the stage of presentation of proof, but the limit is subject to the contrary

12
Denton v. Strong (1874), L.R. 9Q.B.117; Knowles & Sons Ltd. v. Bolton Corpn. [1990]2Q.B.253.
13
See for example Section 15 (2) of the Nigerian Arbitration and Conciliation Act, LFN, 2004 which provides
that where the Rules are silent over a matter relevant to an arbitral proceedings, the arbitral tribunal can
conduct the proceedings in such a manner as it considers appropriate so as to secure a fair hearing.
14
England, Arbitration Act, Article 50.
15
Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus,
Lecture Notes on Law of Arbitration I & II.

6
agreement of the parties, to a contrary provision in the rules governing the arbitration, and to
the right of the arbitrators to extend the period by fifteen days16.

The consequences that might follow from an award not being delivered within the time
specified by the parties or the arbitration rules are usually not specified. One possibility is
that an award delivered after the specified time might be set aside as not having been
delivered in accordance with the procedure agreed by the parties. In Section 10 of the
Nigerian Arbitration Law17, the parties can terminate the mandate of the Arbitrators if there is
unexplained delay by the arbitral tribunal to hand down an award within a specified time.

A different approach is taken by the arbitration law of Egypt in its Article 45:

“(2)If the arbitral award is not rendered within the period referred to in the preceding
paragraph, either of the two parties to arbitration may request the president of the
court referred to in Article (9) of the present Law to issue an order either extending
the time limit or terminating the arbitral proceedings. In the latter case, either party
may bring the dispute to the court having initial jurisdiction to adjudicate the case.”

During the drafting of the Model Law the question was raised as to whether the Model Law
should contain a provision on time limits. However, it was agreed that the model law should
neither set such a time-limit nor deal with the legal consequences of the expiry of a time-limit
stipulated by the parties, since in international commercial arbitration the circumstances
varied considerably from one case to another.18

An award of an arbitral tribunal made up of more than one arbitrator is by unanimity of all its
members19 unless the parties agree otherwise. But it may not be possible for the arbitral
tribunal to secure a majority decision in a particular case, like where there are three
arbitrators, it may not be possible to get two of them to agree on a decision. In some
jurisdictions, an impasse (deadlock) is prevented by providing that if the arbitral tribunal is
unable to arrive at a majority decision, the presiding arbitrator should make a decision. An
example is in Spain where Article 34 of their 1988 Arbitration Act provides as follows:

16
Peru, General Arbitration Law, Article 48.
17
Arbitration and Conciliation Act, Cap A. 18, LFN, 2004
18
Report of the Working Group on International Contract Practices on the work of its third session,
A/CN.9/216, para. 74.
19
Washington Convention, Art. 48(1); See also ICSID Arbitration Rules, r. 16(1).

7
 “The arbitration award, as well as any agreement or resolution of the Arbitral Group,
will be decided by a majority vote, with the vote of the Chairman breaking tie votes.
If there is no majority agreement, the award will be rendered by the chairman”20.

Similarly, the ICC Arbitration Rules provide that where no majority can be reached by
arbitral tribunal, “the award shall be made by the chairman of the Arbitral Tribunal alone.” 21
The same rule is found in the English Arbitration Act 22, the Swiss Act 1987 Act and the LCIA
Rules23.

However, there is no such provision in the Nigerian Arbitration Law. It follows therefore that
whenever the arbitral tribunal is unable to reach a decision, the arbitrators have to continue to
deliberate until they are able to achieve a compromise majority or unanimous decision.

It is submitted that this is a gap in our law which may create problems for the arbitral process.
It is suggested that if the arbitral tribunal is unable to arrive at a majority decision, the
presiding arbitrator should have a casting vote and save the arbitral tribunal from the impasse.

However, a requirement of unanimity would permit a recalcitrant arbitrator to preclude the

arbitral tribunal from arriving at any award. Therefore, most arbitral rules and laws provide
that the award shall be reached by a majority of the arbitrators, unless otherwise agreed by
the parties. As provided in the UNCITRAL Model Law, Article 29:

“In arbitral proceedings with more than one arbitrator, any decision of the arbitral
tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its
members. However, questions of procedure may be decided by a presiding arbitrator,
if so authorized by the parties or all members of the arbitral tribunal.”

There are few national laws on arbitration that have provisions in regard to dissenting or
concurring opinions in arbitral awards. During the drafting of the Model Law the question
was raised by the Secretariat as to “whether the Model Law should take a stand on the issue
of dissenting opinions, e.g. either generally allow or generally prohibit their issuance.” 24 No
action was taken in the Commission. However, when Bulgaria adopted the Model Law it

20
Spanish 1988 Arbitration Act; See Bernardo M. Cremades, 1991, Arbitration in Spain, La ley: Butterworths,
pp. 78 & 154.
21
ICC Arbitration Rules, Article 25(1).
22
England, Arbitration Act, Article 20(4).
23
LCIA Arbitration Rules, Art. 26.3; Swiss PIL Act, Ch.12, Art. 189.
24
Report of the Secretary-General, Analytical commentary on draft text of a model law on international
commercial arbitration, A/CN.9/264, Article 31, para. 2.

8
 provided that: “The arbitrator who disagrees with the award shall submit his dissenting
opinion in writing.”25 Conversely, the Chinese arbitration law specifically permits a
dissenting arbitrator to refuse to sign the award26.

In making the award, the arbitral tribunal has to take into account a number of factors. The
way it deals with these factors will determine the validity or otherwise of the award.

4.0 VALIDITY OF AWARDS

This shall be discussed under formal and substantive requisites of an award.

(1) Formal Requisites

No special form is required in setting down an award, unless the parties by their arbitration
agreement have indicated a special form. The UNCITRAL Arbitration Rules and the
UNCITRAL Model Law express the currently prevailing view that only a short list of matters
is required to be in the award. The award must: be in writing; be signed by the arbitrators or
contain an explanation for any missing signature; state its date and the place of arbitration;
state the reasons upon which the award is based, unless the parties have agreed that no
reasons are to be given27.

A few arbitration rules or laws have more detailed requirements 28. They may include the
identification of the arbitrators, the parties and the authority of their representatives, claims
submitted and the dates and circumstances of important procedural actions29.

However, in order to minimise ambiguities and prevent questions arising in the future, an
award is usually set down into: The Recitals and The Operative Part.

The Recitals

It is a matter of choice whether an award should contain any introductory matter by way of
recitals. It is not necessary for its validity to preface the award with recitals, but in many
cases they may be added with advantage, especially where the nature of the award, or certain
parts of it may be difficult to understand without some preliminary explanation. If recitals are

25
Bulgaria, Arbitration Law, Article 39(1).
26
China, Arbitration Law, Article 54.
27
UNCITRAL Arbitration Rules, Article 32; UNCITRAL Model Law, Article 31.
28
See ICSID Arbitration Rules, R. 47; See also Section 26 of the Nigerian Arbitration and Conciliation Act,
LFN, 2004.
29
See ICSID Arbitration Rules, Rule 47 for such a detailed list of matters to be included in the award.

9
introduced, they should be full and clear, and should be so drawn as to lead up to the
operative parts of the award. They must also be consistent with the subsequent parts of the
award. The following are matters which should be referred to in the recitals, if they are
included in an award:

a. The agreement or order for reference to arbitration.

b. The subject matter of the arbitration; that is to say, the occurrence and nature of the
dispute between the parties.

c. The appointment of, and the authority delegated to the arbitrator(s).

d. Any special powers or conditions of the reference, and any special points or matters
which have arisen during the arbitration and which are specially decided in the
award.30

The fact that recitals are incorrect, false, incomplete, or contain mistakes and errors, will not
vitiate the award. However, an inaccurate recital might lead to a misconstruction of the
award31. It is highly proposed that there should be a lookout against mistakes and errors of
this nature when drafting recitals.

Instances of inaccurate recitals that did not vitiate the award are:

a. Where the arbitrator neglects to set out his authority, or omits to recite the fact of the
time having been enlarged.32

b. Where the recital contains a mistake as to the Christian name of one of the
arbitrators.33

c. Where the recital contains a mistake as to the number of the arbitrators by whom the
award is executed.34

30
John P. H. Soper, A Treatise on the Law and Practice of Arbitration, London: The Estate Gazette, pp. 74-75.
31
Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus,
Lecture Notes on Law of Arbitration I & II.
32
Barker v. Hunter (1847) 16M. & W. 672; 16L.J.Ex. 203; George v. Lousley (1806) 8 Eas.
33
Trew v. Burton (1833) 1. C. & M. 712; 13 L.J.Ex. 215.
34
White v. Sharp (1844) 12M. & W. 712; 13 L.J.Ex. 215.

10
The Operative Part

This part of the award contains the finding and decision of the arbitral tribunal upon the
matters in dispute. It is the only essential part of the award and will alone constitute the award
if there were no recitals. It is the duty of the arbitral tribunal to give a decision upon the
dispute which has been submitted. And once the arbitral tribunal gives clear and unequivocal
decision, the form or words in which it is expressed are of no importance.

Some arbitration laws require that all awards contain the reasons on which they are based 35.
Most require reasons unless the parties have agreed otherwise or the award is on agreed
terms36. The Netherlands arbitration law, Article 1057(4)(e) provides, in addition, that no
reasons need be given in the award if “the award concerns merely the determination only of
the quality or condition of the goods.” The Federal Arbitration Act of the United States does
not require reasons to be given in an award.

However, the Nigerian Arbitration Law requires that the reasons upon which the award is
based should be clearly stated on the award, unless the parties had agreed that no reasons are
to be given.37 If the award is an award on agreed terms under Section 25 of the Act, then the
arbitral tribunal should state so on the award and in that case no other reasons are required.38

Some arbitration institutions require reasons to be given in all awards 39. The most common
provision appears to be that reasons need to be given unless the parties have agreed
otherwise, the award records a settlement reached between the parties or the parties have
agreed that the arbitrators can act as amiables compositeurs40.

Years ago, when many national laws were simpler and less sophisticated than now, Lord
Mansfield gave some excellent advice to his fellow English Judges, which might equally
have been given to arbitrators:

35
See, e.g., Belgian Judicial Code, Article 1701(6).
36
The UNCITRAL Model Law contains such a provision in its Article 31(2).
37
Section 26(3)(a) Cap. A18.
38
Ibid.
39
See, e.g., International Chamber of Commerce, Arbitration Rules, Article 25(2). The requirement apparently
applies even to a settlement recorded in the form of an award under Article 26.
40
See, e.g., UNCITRAL Arbitration Rules, Articles 32(3) and 34(1); American Arbitration Association,
International Arbitration Rules, Articles 27(2) and 29(1).

11
 “Consider what you consider justice requires and decide accordingly. But never give
your reasons; for your judgment will probably be right, but your reasons will certainly
be wrong”.41

Even today, there are arbitrations where the giving of reasons is likely to seem superfluous.
An arbitrator in a quality arbitration, for example, who is asked to decide whether goods
which have been supplied do or do not correspond to sample, can hardly do more than answer
“yes” or “no”.

Internationally, the movement is in favour of giving reasons, unless the parties agree
otherwise. This may be seen in the Model Law, which stipulates:

“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”42.

The Washington Convention calls for a reasoned award, without restriction. 43 The ICC’s
Court deems awards which are insufficiently reasoned to be defective as to form. The highest
court of the United States has however ruled that: “Arbitrators have no obligation to the court
to give their reasons for an award”44. The exception to this rule is where the parties have
provided for reasons to be given in their arbitration agreement or the arbitral procedure is
governed by a law that requires a reasoned award.

The award must be in writing and signed by the arbitrator or arbitrators. It must also comply
with any other form required by the parties. The making of the award must not be delegated
to another person.45 It was however held that an arbitrator could employ a legal adviser to
draw up the award.46

Execution

It is almost a universal requirement in international commercial arbitration that the award be

written and signed. The New York Convention implies in its Article IV that the award must
be in writing, but does not say so explicitly.

41
Cited in Bingham, “Reasons and Reasons for Reasons: Differences Between a Court Judgment and an
Arbitral Award” (1988) 4 Arbitration International, p. 141.
42
Model Law, Art. 31.
43
Washington Convention, Art. 48. 3.
44
United Steelworkers of America v. Enterprise Wheel & Car Corp. 363 US 593, 598 (1960).
45
Johnson v. Lathan (1850) 19L.J.Q.B. 329
46
Re Underwood and Bedford and Cambridge Ry. (1861) 31 L.J.C.P.p. 10

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The UNCITRAL Model Law states it explicitly in Article 31. The English Arbitration Act,
which applies to domestic as well as international arbitrations, provides that the parties are
free to agree on the form of the award, e.g. that it may be oral, but in the absence of such an
agreement the award must be in writing and signed47. There are different rules in regard to the
signature. A requirement that all of the arbitrators must sign the award would allow a
dissenting arbitrator to block its issuance. Consequently, many arbitration laws and rules
provide that the award is valid if signed by a majority of the arbitrators, though an
explanation of the reason for any missing signature may be required 48. A typical provision is
found in the UNCITRAL Model Law, Article 31:

“(1)The award shall be made in writing and shall be signed by the arbitrator or
arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the
majority of all members of the arbitral tribunal shall suffice, provided that the reason
for any omitted signature is stated.”

Some laws require only the signature of the presiding arbitrator 49. Others require the
signatures of all the arbitrators who voted for the award50.

In an arbitration with three arbitrators, must the three or two out of the three arbitrators
execute the award at the same time and place in order to render the award valid? It was the
rule that “in the case of an award by more than one arbitrator all the arbitrators making the
award should execute it at the same time and in the presence of each other” 51. However, in
European Grain and Shipping Ltd. v. Johnson 52 there were observation by Lord Denning, to
the effect that modern developments such as telephone and typewriter and other forms of
communication have made communication a lot easier. The above rule should not therefore
be taken too literally now: provided that all the arbitrators communicate together as to the
content of the award, either in each other’s presence or by telephone or documents. They
should not all be present at one time, place to sign the award.

47
Article 52. The parties may also agree that the award does not have to contain reasons or the date of its
making or the seat of the arbitration.
48
Section 26 (1)& (2) of the Nigerian Arbitration and Conciliation Act, Cap. A18, LFN, 2004
49
See, e.g., Swiss Private International Law, Article 189(2).
50
See, e.g., England, Arbitration Act, Article 52(3).
51
Russell on Arbitration, 21st Edition, p.268; Re Lord and Lord (1835), 5 E. & B. 404; Wade v. Dowling
(1854)23 L.J.Q.B. 302.
52
[1982] 1 Lloyd’s Rep. 414

13
Reverend Father (Dr.) O. Ezike, agrees with the above view. He further opines that what is
important is that the arbitrators are ad idem. It should therefore be immaterial whether they
all sign the award together at a time or whether they sign separately at different times.

Date and Place of the Award

It is an all but universal requirement that the award have on it the date when it is made and
the place of arbitration53. Both have legal consequences, but neither needs to reflect the place
where and date when it was signed. In international commercial arbitration once the
proceedings have been closed, the arbitrators return to their home countries. The draft award
will be circulated among the arbitrators for their comments and approval. It would not be
reasonable to require all to return to a single place simply to sign it.

UNCITRAL Arbitration Law, Article 31(3) provides that: “The award shall state its date and
the place of arbitration as determined in accordance with Article 20(1). The award shall be
deemed to have been made at that place.”

The place of arbitration plays a significant role throughout the arbitration. It determines the
law governing the arbitration and the courts empowered to act in support of, or to interfere
with, the arbitration. Similarly, stating the place of arbitration on the award confirms the court
before which the losing party can move to have the award set aside. It also establishes
whether enforcement of the award can be sought under the New York Convention.

According to the UNCITRAL Model Law, and all other modern arbitration laws, the hearings
and other procedural acts need not have taken place at the place of arbitration 54. As a
consequence, the “place of arbitration” may be factually largely or completely fictitious.
Even so, the “place of arbitration” is of prime legal significance.

A few arbitration laws require the award to indicate where it was signed in fact 55. Such a
provision can normally be complied with easily in domestic arbitrations but is less practicable
in international arbitrations with arbitrators from several countries. The date of the award
determines when the award has res judicata effect and can be executed by a court56. It also

53
Article 52.
54
See UNCITRAL Model Law, Article 20(2).
55
See, e.g., Bolivia, Law on Arbitration and Conciliation, Article 56; Brazil, Arbitration Law, Article
26.
56
See, e.g., France, New Code of Civil Procedure, Article 1478.

14
begins the period within which the losing party can move to have the award set aside 57,
though the time limit may be stated to begin when the award is received.

UNCITRAL Model Law, Article 34(3) provides that: “An application for setting aside may
not be made after three months have elapsed from the date on which the party making that
application had received the award …”.

Delivery and Publication

It goes without saying that the award must be notified to the parties. Notification not only
communicates to the parties which of them has prevailed and their rights and duties under the
award, it commences the periods within which a party that is not satisfied with the award can
request the court to set it aside and a prevailing party can move to have it recognized and
enforced.

The UNCITRAL Arbitration Rules, place on the arbitral tribunal the obligation to
communicate to the parties copies of the award signed by the arbitrators 58. Where the
arbitration has been conducted under the auspices of an arbitration organization, the award
will normally be communicated to the parties by the secretariat of the organization. That is
stated explicitly in such rules as the German Institution of Arbitration (DIS), the International
Chamber of Commerce and the International Arbitration Rules of the American Arbitration
Association59. Notification by the secretariat of the institution will take place only once all of
the fees have been paid60.

Arbitration laws typically place the burden of communicating the award to the parties on the
arbitral tribunal, since there may be no institution involved. A typical provision is found in
the Netherlands Arbitration Law, Article 1058:

“(1) The arbitral tribunal shall ensure that without delay: (a) a copy of any award,
signed by an arbitrator or the secretary of the arbitral tribunal, is communicated to the
parties.”

57
See, e.g., England, Arbitration Act, Article 70(3), “within 28 days of the date of the award”.
58
UNCITRAL Arbitration Rules, Article 32(6).
59
See, e.g., German Institution of Arbitration (DIS), Arbitration Rules, Article 36.2; ICC, Arbitration Rules,
Article 28(1); American Arbitration Association, International Arbitration Rules, Article 27(5).
60
See, e.g., German Institution of Arbitration (DIS), Arbitration Rules, Article 36.3; ICC, Arbitration Rules,
Article 28(1).

15
Once both parties have a copy of the award, there is no inherent reason why the award must
be kept by the arbitral tribunal or arbitration institution. The UNCITRAL Arbitration Rules
do not, for example, have any such requirement. Institutions usually do keep a copy, however,
even where not required to do so by law61.

Some arbitration laws require deposit of the award with the court. The obligation normally
falls on the arbitral tribunal, but it may also fall on the successful party 62. Most arbitration
rules provide that if the arbitration law of the place of arbitration requires deposit with a
public authority, the arbitral tribunal is obligated to follow the provisions of the law. Such a
provision is designed to remind the arbitral tribunal, which may be composed of arbitrators
from countries other than that of the place of arbitration, of the possibility of such a
requirement. As provided in the UNCITRAL Arbitration Rules, Article 32:

“(7) If the arbitration law of the country where the award is made requires that the
award be filed or registered by the arbitral tribunal, the tribunal shall comply with this
requirement within the period of time required by law.”

This communication to the parties constitutes publication. For publishing the award to the
outside world, it seems that the consent of the parties must be secured. A conflict emerged
during the 1990s between the “inherent confidentiality” of the arbitral process and the desire
for publication of awards to the outside world, in the interest of establishing a body of
precedent that might guide, if not bind other arbitrators. The prevailing trend appears to
favour publication. Awards of the Iran-US Claims Tribunal have been comprehensively
reported and have been of guidance in other arbitrations63.

The ICC and ICDR Rules seem to be at ad idem by providing that unless otherwise agreed by
the parties, selected awards may be made publicly available, with the names of the parties
and other identifying features removed64

There are other circumstances in which, even without the consent of the parties, an award
may more legitimately find its way into the public domain 65. This may occur, for example,
61
See, e.g., Swiss Rules, Article 32.6. Retention of a copy by the arbitral tribunal or arbitral institution is not
required by the Swiss Private International Law.
62
Belgium, Judicial Code, Article 1702.2, (chairman of the arbitral tribunal); Egypt, Arbitration Law, Article
47, (successful party).
63
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial
Arbitration, London: Sweet and Maxwell
64
Ibid.
65
Ibid

16
during court proceedings to challenge or enforce an award; or when publicly quoted
corporation is obliged to disclose in its published accounts material information relating to its
liability66.

When once an arbitrator (or arbitrators as the case may be) has executed his award, he
becomes functus officio, that is to say, his powers entirely ceases, save for the powers to
correct and interpret the award, or to make additional award.

Correction and Interpretation of Award

At common law the arbitral tribunal could not alter the award in any way whatsoever. Indeed
it could not even correct any type of errors or mistakes whether clerical or typographical67.

However, arbitral tribunal can correct such errors, either on its own initiative or at the request
of a party. The time within which such an error can be corrected is always limited. One to two
months is typical for international commercial arbitration, though shorter periods are
common for domestic arbitration. This does not allow the arbitral tribunal to correct the
errors or mistakes of the arbitral tribunal itself. In order words, it is not designed to be
employed by the arbitral tribunal to impeach its own award. Such was the issue in the case of
Sutherland v. Hannevig Brothers Ltd68. There, an umpire made an award, and afterwards
delivered an amended award, making an alteration with respect to costs. The Court, having
come to the conclusion that the umpire had written down what he intended to write in the
original award, and not omitted anything by accident, held that he had no power to alter it,
and that the original award must stand69.

Similarly, there may be occasions when the operative portion of an award is unclear or where
in a complex arbitration the award appears to place inconsistent obligations on the parties. In
such a case it may be appropriate for the arbitral tribunal to interpret the award for the parties.
Most arbitration rules provide for the possibility. ICC Arbitration Rules, Article 29, provide
that a party may make such a request to the ICC Secretariat within 30 days of receipt of the
award70. The request will be sent to the other party who will be given a short time, not

66
Paulsson & Rawding, “The Trouble with Confidentiality” Arbitration International, Vol. 11, No. 3, pp. 303-
320.
67
Halsbury’s Laws of England, 3rd Edition, Vol. 2, p.46; Mordue v. Palmer (1870) 6 Ch. App. 22; Henfree v.
Bromley (1805) 5 B. & Ad. 518.
68
[1921]1 K.B.336
69
See also Pedlen v. Hardly (1920)18 T.L.R. 591
70
See also Section 28 of the Nigerian Arbitration and Conciliation Act which provides for same 30 days.

17
exceeding 30 days, to comment on the request. The arbitral tribunal is not bound to give the
requested interpretation. If it does decide to do so, the interpretation takes the form of an
addendum to the award and becomes part of the original award71.

The interpretation must be of the award, not of the reasoning. The arbitral tribunal must be
careful not to allow a request for interpretation to become an opportunity for a party to
present new arguments in regard to matters that were already settled in the award72.

The position under different sets of arbitration rules varies considerably. The LCIA Rules
contain an express power for the arbitral tribunal to correct accidental mistakes or omissions,
but not to make interpretations of award73. The SCC Rules contain a provision granting the
arbitral tribunal power to give a written interpretation of its award at the request of a party, in
addition to the power to correct clerical errors74.

(2) Substantive Requisites

An award in order to be valid must be certain, consistent, possible, unambiguous, non-

contradictory, unconditional and unimpeachable. It must decide the matters in the submission
and no more. No technical expressions are necessary75. But as awards often bind valuable
rights for all times, the arbitrator should be precise and clear in his adjudication.

Although the court is inclined to support the validity of an award, such a presumption will not
extend to the jurisdiction of the arbitrator, for it has been said that the legal maxim omnia
praesumuntur rite esse acta (all things are presumed to have been duly done) does not apply
to arbitral proceedings or, indeed, to the proceedings of inferior tribunals or, indeed, to the
proceedings of inferior tribunals of any sort.76

This maxim does not preclude a fair interpretation of an award on matters submitted to
arbitration. For the court will be inclined to presume in favour of an award in clear and
comprehensive terms. Such was the decision of’ the Supreme Court of Nigeria in the case of
United Nigeria Insurance Co. Ltd. v. Stocco.77 In this case, the Supreme Court held that:
71
Since the interpretation is in effect a modification of the form of the award, it must be submitted in draft to the
ICC Court of International Arbitration for its review before it is sent to the parties.
72
Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus,
Lecture Notes on Law of Arbitration I & II.
73
LCIA Arbitration Rules, Art. 27
74
SCC Rules, R. 20; See also, Art. 35(1)(2) and 37(1) of UNCITRAL Model Rules.
75
Eardley v. Steer (1835) 4 Dowl. 423; 4 L.J.Ex. 293.
76
Per Delvin J., in Brown v. Oesterreichischer Waldbesitzer R. G. m.b.H. [1954] 1 Q.B. at. p. 13
77
(1973) S.C.N. p.231

18
 “It is the duty of a court so to construe an award as to make it, if possible, certain and
final, and an award will be sustained even though the arbitrator has omitted to
mention some claim or other matter submitted by a party if, according to the fair
interpretation of the award, it is to be presumed that the claim or matter has been
taken into consideration; where an award purports to he made concerning the matters
submitted, the presumption is that the arbitrator intended to dispose finally of all the
matters in difference, and the award is good notwithstanding that the arbitrator has not
made a distinct adjudication on each or any of the several distinct matters submitted to
him, provided it does not appear that he has excluded any; and an award which is
clear and unambiguous in its terms and deals with the only issue in controversy must
be deemed to have impliedly disposed of all matters referred to the arbitrator and all
the points of claim and defence submitted to him”78

The Award Must be Final

An award, in order to be binding, must settle all the points raised under the arbitration
agreement, so that the parties to the dispute will be enabled to know their legal position
without having to resort to further judicial inquiry.79 Where there is need, and in order to
avoid rendering the award bad for want of finality, the arbitrator can make an interim award,
that is an award dealing with certain matters referred to him, to be followed later by a
decision on remaining points.

An award will not be bad on the ground of want of finality when the parties have not brought
to the arbitrator’s notice all ‘the matters in dispute; provided he has in fact adjudicated upon
all the points that were presented to him.80 An award may be put in the alternative and at the
same time be final and binding. This will be the case where an award directs one or two
things to be done, and one of them is uncertain or impossible, the award is nevertheless
sufficiently certain and final if the second alternative is certain and possible; and it will be
incumbent on the party to perform the second alternative.81

Where the arbitrator omits to give the necessary directions to effectuate the objects of his
award the latter is not final.82 An award will be bad on the ground of want of finality when an
78
Ibid. at p. 244.
79
Samuel v. Cooper (1835) 2 A. & E.. 752; Wilkinson v. Hulse (1866) L.R. Ex. 251; Randall v. Randall (1805)
7 East 81.
80
Elsom v. Water (1847) 2 Smith 459; Hawksworth v. Brammall (1839). 5 My. & Cr. 281.
81
Simmons v Swaine (1809) 1 Taunt. 549.
82
Johnson v. Wilson (1741) Willes 248.

19
arbitrator reserves or delegates his judicial authority.83 But an arbitrator can validly reserve or
delegate a further ministerial act to be done by himself or by another person at any time, even
after the time for making the award has expired.84 An award that is not final will be set aside.

The Award Must be Certain

An award must be expressed in such a clear language that no reasonable doubt can arise upon
its face as to the meaning of its provisions or as to the nature and extent of the duties imposed
by it on the parties. If there is any doubt as to whether the award has decided the dispute or
the question referred, the award will be invalid. If the arbitrator does not specify a sum of
money but gives a rule for computing the amount, the award is sufficiently certain in
accordance with the maxim id certum est quod certum redid potest.85 Therefore, some
awards, although they may appear to lack certainty, will not be bad if they contain sufficient
indications of the intention of the arbitrator(s) to enable decision of certainty to be deduced. 86
Some examples of uncertain awards are:

(i) where it provides that A or B shall do a specified act: The award was declared void for it
was uncertain by whom the act is to be performed.87

(ii) where it directs a party to set up certain fixtures in the place of others which had been
removed, but does not specify the value, quantity or nature of the fixtures to be set up, it was
held that the award was bad for uncertainty.88

The Award Must be Consistent

An award must be consistent in all its parts and not ambiguous or contradictory 89. This rule is
practically a corollary to the rule as to certainty. It applies more particularly to cases where
several issues have been referred or where from the nature of the dispute the award directs the
performance of certain terms and conditions. In such cases, care must be taken to see that the
finding, or the terms and conditions, are consistent one with another and with the general
purport of the award. An illustration of inconsistency can be seen in arbitration where the
83
Re O ‘Connor and Whitlaw (1919) 88 L.J.K.B. 1242 ; Tomlin v Mayor of Fordwich (1836) 5A. & E. 147.
84
Thorp v. Cole (I835) 2 C.M. & R. 367 - In this case the arbitrator determined the question which entailed the
exercise of judicial acumen, but left the measurement, which was a matter not depending upon an individual’s
discretion so much as on the accurate compliance with certain mathematical rules, to another person.
85
That which can be made certain, is certain.
86
Law v. Blackburrow (1853) 23 L.J. C.P. 28.
87
Lawrence v. Hodgson [1826] 1 Y. & J. 16.
88
Price v. Popkin (1839) 10 A. & E. 139; 8 L.J. Q..B. 198
89
Storke v. De Smith (1738) Willes 66; Sherry v. Richardson (1591) Pop. 15

20
question in issue was whether a fraud had been committed. The arbitrator found that the
accused party was not guilty of fraud, but nevertheless decided against him. The court set
aside the award. Park J. stated that: “The conclusion to which the arbitrator has come in this
case is absurd. He says ‘I think he is innocent’ and then awards against him”.90

The Award Must be Legal and Capable of Performance

This means that the award must be physically possible for the parties to perform the award
and to perform it without contravening the law. The rule is similar to the rule of the Law of
Contract, which requires all contracts to be capable of performance and to be legal and not
contrary to public policy.

An arbitrator awarded that the defendant, in an action which had been referred to him, should
repair a weir and the eastern bank of a river. The eastern bank of the river was not the
property of the defendant and he had no right to go on to it to execute the repairs. It was held
that the arbitrator had no power to order an act which would amount to a trespass, and the
award was not binding91. This must however be distinguished from a case where the award
directs one of the parties to pay a sum of money which is beyond his means. This would not
be regarded as a legal impossibility92. Similarly, if an act which is possible at the time of the
award afterwards becomes impossible by the act of a party or of a stranger, the party is not
freed from his obligation to perform the award93.

The Award Must be Directed to all Matters Referred

The award must determine all the differences which the parties by their agreement had
referred to arbitration; otherwise it will be bad and unenforceable 94. An award which purports
to determine matters not comprised in the agreement of reference is equally bad and
unenforceable, unless the part of the award which was beyond the scope of the agreement of
reference can be severed from that which deals with the matters comprised within it, in which
case the latter part will he held good and valid95.

90
Ames v. Milward (1818) 8 Taunt 637.
91
Lewis v. Rossiter (1875) 44 L.J. Ex. 136: 33 L.T. 260.
92
See John P. H. Soper, p. 84.
93
Russell on Arbitration, p. 285
94
Bradford v. Bryan (1741) Willes 268.
95
See Re Wright and Cromford Canal Co. (1841) 1 Q.B. 98.

21
 The court presumes that unless and until the contrary is shown, the arbitrator has by his
award determined those matters, and those matter only, which were referred to him. The
burden of proving that he has awarded on matters not referred, or that he has failed or omitted
to award on matters which were referred, lies on the party who seeks to impeach the award96.

5.0 CATEGORIES/TYPES OF AN AWARD

The difficulty of defining an award was highlighted in the earlier part of this paper. This
difficulty partly stems from the fact that there are various types of award which may be made
in arbitral processes. In addition to making a final award the arbitral tribunal shall be entitled
to make interim, interlocutory or partial awards97.

Examples of awards which exist and are recognized internationally are:

(i) Final Award

In a sense, all awards may be said to be “final” in that (subject to the possibility of challenge
in the courts) they dispose of one or more of the issues in dispute between the parties. For
instance an interim (or a preliminary award) by the arbitral tribunal to the effect that it does
have jurisdiction to determine the dispute before it, is a final decision on the issue of
jurisdiction, subject of course to any appeal to the court.

However, the term “final award” is customarily reserved for an award which completes the
mission of the arbitral tribunal or better still is an award which contains the final decision of
the arbitral tribunal on all matters that were submitted to it. As stated in the UNCITRAL
Model Law on International Commercial Arbitration, Article 32, “The arbitral proceedings
are terminated by the final award and the mandate of the arbitral tribunal terminates with the
termination of the arbitral proceedings.

The handing down of a final award normally renders the arbitral tribunal functus officio. It
ceases to have any further jurisdiction over the dispute; and the special relationship that exists
between the arbitral tribunal and the parties during the currency of the arbitration ceases. This
has significant consequences. An arbitral tribunal should not issue a final award until it is
satisfied that its mission has actually been completed. If there are outstanding matters to be
determined, such as questions relating to costs or interest, or further directions to be given

96
Jewell v. Christie (1867) L.R. 2 C.P. 296; Bland & Co. Ltd v, Russian Bank for Foreign Trade (1906) 11
Comm. Cas. 71.
97
See Article 32(1) of the Nigerian Arbitration Rules (ACA, Arbitration Rules), LFN, 2004.

22
relating to the disposal of property, the arbitral tribunal should issue an award which is
expressly designated as an interim award.98

(ii) Interim Award

An interim award or preliminary award, as it is sometimes called is an award which disposes

of a preliminary question, such as the issue of the jurisdiction of the arbitral tribunal. Alan
Redfern, and Martin Hunter, described interim award as “a useful weapon in the armoury of
an arbitral tribunal99. It is, so to say, a useful weapon in determining matters which are
susceptible of determination during the course of the proceedings and which once
determined, may save considerable time and money for all involved.

If the arbitral tribunal has no jurisdiction to deal with the dispute, it is in the interest of all
involved that a decision to that effect is made in the form of an award early in the
proceedings than that at the end of a lengthy proceeding it turns out that the arbitral tribunal
has no jurisdiction to deal with the matter. This type of award even though it pertains to the
issue of jurisdiction and so may be regarded as an interim award, is a final award as regards
the matter of jurisdiction of the arbitral tribunal. And also because the arbitral tribunal after
making that award, ceases to exist as it has decided in that award that it has no jurisdiction to
proceed with the arbitration.

The power of arbitral tribunal to issue interim awards may be derived from the arbitration
agreement or from the applicable law100. It may be doubtful whether the arbitral tribunal can
make an interim award where there is neither express nor implied provision to do so in the
arbitral agreement, the applicable rules or the applicable law. Where the arbitration agreement
incorporates international or institutional rules of arbitration, these rules generally contain
provisions for the making of such award. The UNCITRAL rules, for instance, state that “in
addition to making a final award, the tribunal shall be entitled to make interim, interlocutory,
or partial awards”.101

Moreso, the ICC Rules adopt a similar formula, defining the term “award” to include “an
interim, partial, or final awards”. The LCIA Rules follow the same approach102.

98
See Alan Redfern and Martin Hunter, para. 8-33.
99
Ibid. para. 8-34.
100
Article 32 (1), UNCITRAL Arbitration Rules.
101
Ibid
102
LCIA Arbitration Rules, Art. 26(7)

23
Another example of a situation in which the device of an interim award is likely to prove
useful is in international arbitration, where there is a dispute between the parties as to the law
or laws applicable to the merits of the case. If this dispute is not resolved at an early stage, the
parties must argue their respective cases by reference to different systems of law. They may
even need to introduce evidence from lawyers experienced in each of these different systems.
In such circumstances, it is often sensible for the arbira1 tribunal to issue a preliminary
decision on the question of the applicable law and, where this is done, it is usual, although not
essential, to make this decision in the form of an interim award.

It is also a desirable practice to issue a preliminary award in cases where the issues of liability
can be separated from those of quantum. This may be applicable where it is hoped that once
the question of liability is settled the actual amount involved can be agreed by the parties or
their accountants, so that what is wanted is an award on liability only, reserving questions on
quantum of damages until later. In such cases, the better course is usually for the arbitrator to
make an interim award. The disadvantage of an interim award whether it is on an issue of
jurisdiction, applicable law or one of the substantive claims is that a further avenue for
judicial review with its consequent delay is created. Judicial intervention during the course of
arbitration might occur on an application by one of the parties to set aside the interim
award103.

(iii) Partial Award

It is not easy to distinguish between an interim award and a partial award. The various
categories of awards listed in Article 32(1) of the Nigerian Arbitration Rules are not defined
in the Nigerian Arbitration Act or in the Rules, and no clear distinction is made between the
awards in the above Article. The two terms “interim” and “partial” awards are sometimes
used interchangeably. However, in civil law jurisdictions, partial award is used to describe an
award which disposes of one or more of the monetary or other main issues between the
parties104.

(iv) Default Award

103
Another type of judicial intervention is with respect to the confirmation of an interim award which exists in
the United States, though not part of Nigerian law. In the United States for example, a partial award for the
payment of freight was “confirmed” by a Court while there were still outstanding matters in dispute in the
Arbitration-Mettallgesellschaft AG v. M/V Capitan Conatante and Yacimientos Petroliferos Fiscales 790 F.
2d 280 (2nd Cir. 1986).
104
Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus,
Lecture Notes on Law of Arbitration I & II.

24
In some cases, international commercial arbitrations are held, in which one party (usually the
respondent) fails to participate in the proceedings ab initio or withdraws from the
proceedings midstream.

It is not wise for a party against whom arbitration has been commenced to refuse to
participate in it and to present its defences. In an earlier time it sometimes happened that a
respondent would refuse to participate in the appointment of the arbitral tribunal and neither
the rules that might have been applicable nor the relevant arbitration law provided a means to
complete the tribunal. That would be a rare occurrence today. Modern arbitration rules and
law all provide a mechanism for the appointment of any missing arbitrators 105. The arbitration
will commence even without the participation of the respondent.

It is the common rule currently that the failure of the respondent to submit a defence or to
participate in the hearings to which it has been given adequate notice does not impede the
arbitral tribunal from continuing the proceedings on the basis of what is presented to it. The
absence of the respondent does not relieve the claimant from the obligation to present its
evidence to sustain the claims that it has made. It can be anticipated that there will be such
evidence and the award will favour the claimant in all respects. The UNCITRAL Model Law,
Article 25, expresses this policy in the following words:

“Unless, otherwise agreed by the parties, if, without showing sufficient cause,

… (b) the respondent fails to communicate his statement of defence in accordance

with Article 23(1), the arbitral tribunal shall continue the proceedings without treating
such failure in itself as an admission of the claimant’s allegations.”

The award issued at the end of an arbitration in which the respondent has not participated is
usually known as a default award and will be enforced so long as the respondent has been
given proper notice and an opportunity to present its case. The importance of ensuring that
the defaulting party is given, and is seen to have been given, a full and proper opportunity of
presenting its case to the arbitral tribunal is clear. If the arbitral tribunal makes an award in
favour of the active party in the proceedings, it will want to do its best to ensure that the
award is effective. To this end, it should ensure, in particular, that the award recites in
considerable detail the procedure followed by the arbitral tribunal and the efforts made by it

105
See, e.g., UNCITRAL Model Law, Article 11(4).

25
to communicate the active party’s case to the defaulting party, so as to give that party every
opportunity to present its own arguments and evidence106.

In addition to the motivation or reasons given, the award should reflect the fact that the
arbitral tribunal has genuinely addressed itself to the merits of the case, in order to show that
a reasoned determination has been made of the claims before the tribunal107.

The Award should also deal with questions of jurisdiction that appear to the arbitral tribunal
to be relevant, whether or not such issues have been raised by one or other of the parties. In
this context, the ICSID Rules, which contain detailed provisions for default proceedings,
expressly stipulate that:

“The Tribunal shall examine the jurisdiction of the Centre and its own competence in
the dispute and, if it is satisfied, decide whether the submission made is we-founded
in fact and in law”108

The above will ensure that the active party while coasting home to victory, is at a lesser risk
of his victory been washed away by any decision of the national courts.

(v) Additional Award

The “final award” may not cover every issue that needs to be decided in the arbitration. In
some cases that is deliberate. For example, the arbitral tribunal may leave to a subsequent
award a decision on the costs. In that case the “final” award is really a partial award, though it
may cover all of the claims presented in the statement of claim.

In other cases, failure to cover all of the issues may arise as an error on the part of the arbitral
tribunal. Most arbitration rules permit the arbitral tribunal to issue an additional award on
those claims that were presented to it. This authority is usually strictly limited in time. A
typical provision is found in the UNCITRAL Arbitration Rules, Article 37:

“(1)Within thirty days after the receipt of the award, either party, with notice to the
other party, may request the arbitral tribunal to make an additional award as to claims
presented in the arbitral proceedings but omitted from the award.

106
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial Arbitration,
London: Sweet and Maxwell, (3rd edition, paragraph 8-16
107
Ibid.
108
ICSID Arbitration Rules, R. 42(4).

26
 (2) If the arbitral tribunal considers the request for an additional award to be justified
and considers that the omission can be rectified without any further hearings or
evidence, it shall complete its award within sixty days after the receipt of the request.”

While the Model Law permits the arbitral tribunal to make an “additional” award only on the
request of a party, some national laws permit the arbitral tribunal to make the additional
award on its own initiative 109. Other national arbitration laws do not permit additional awards
or may restrict them to limited issues, such as a decision on costs. Some national arbitration
laws may permit a court to remit an award to the arbitral tribunal to complete it in regard to a
claim that was not decided in the award, but this is not the general rule110.

(vi) Consent Award

It is a frequent occurrence that the parties in arbitration are able to arrive at a settlement. The
settlement can, of course, be formalized as an amendment to their original contract or as a
new contract. In that case, if one of the parties does not fulfil its obligations under the
settlement, the other can commence a new arbitration (assuming that there is a suitable
arbitration clause) or litigation.

An alternative possibility provided in most arbitration rules and laws is that the settlement be
formalized as a consent award. A typical provision is contained in the UNCITRAL Model
Law, Article 30:

“(1)If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal
shall terminate the proceedings and, if requested by the parties and not objected to by
the arbitral tribunal, record the settlement in the form of an arbitral award on agreed
terms.

(2) An award on agreed terms shall be made in accordance with the provisions of
article 31 and shall state that it is an award. Such an award has the same status and
effect as any other award on the merits of the case.”

The ICC Rules contain a similar provision: if the parties reach a settlement, after the file has
been transmitted to the arbitral tribunal in accordance with Art. 13:

109
See, e.g., England, Arbitration Law 1996, Article 57.
110
See, e.g., Israel, Arbitration Law 1968, Article 22; England, Arbitration Law 1996, Article 68.

27
 “the settlement shall be recorded in the form of an award made by consent of the
parties if so requested by the parties and if the Arbitral Tribunal agrees to do so”.111

The qualification: “if so requested by the parties” and “if the arbitral tribunal agrees so”
indicate that under the 1CC Rules though the use of the word “shall” suggest an obligation,
there is no obligation of either party or the tribunal to make a consent award.

The arbitral tribunal may be told of the settlement by one of the parties alone, especially if the
settlement has been recorded in a contract. Upon learning of the settlement, and being
convinced that it had really taken place, the arbitral tribunal is called upon to terminate the
proceedings, by which is meant the entire arbitration. It would be rare that a tribunal would
do so without having received assurances from both or all the parties that the settlement had
truly been agreed upon.

The arbitral tribunal is to record the settlement in the form of a consent award only if it is
requested to do so by the “parties”, i.e. by all the parties. As noted in Article 31(2), a consent
award is an award, which means that there can be execution on it if one of the parties fails to
live up to its terms. It is the responsibility of the arbitral tribunal to assure itself that it is not
lending its assistance to injustice in regard to a party, but there is little concern if all the
parties make the request.

The Model Law makes it clear that the tribunal need not record the settlement as an award if
it has an objection to doing so. That is because the arbitral tribunal also has an obligation to
assure itself that the requested consent award does not constitute a fraud or otherwise violate
mandatory rules of law.

6.0 RELIEFS AND REMEDIES

Arbitral awards may cover a range of reliefs and remedies including:

(1) Monetary compensation112: The type of award most often made by an international
arbitral tribunal is one that directs the payment of a sum of money by one party to the
other. This payment may represent money due under a contract (debt) or
compensation (damages) for loss suffered, or both. The sum of money awarded is
usually expressed in the currency of the contract or the currency of the loss. In large

111
ICC Arbitration Rules, Art. 26.
112
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial
Arbitration, London: Sweet and Maxwell.

28
 international projects, however, it is not unusual for reference to be made to several
different currencies; so that, for example, plant and equipment manufactured or
purchased or purchased overseas may be paid for in US dollars, whilst labour plant
and equipment made or purchased locally may be paid for in the local currency. In
such cases, unless the parties agree, the arbitral tribunal must hear argument as to the
currency or currencies in which the award is to be made.

(2) Specific performance and restitution: Restitution represents an attempt to put the
clock back; that is to say, it seeks to put the aggrieved party in the same position as
that party would have occupied if the wrongful act had not taken place. In common
law terminology, it is a form of specific performance. In the field of commercial
arbitration it is a remedy that is hardly ever used in practice, perhaps, because
international tribunals quite rightly tend to avoid making awards that are difficult to
enforce. There have also been doubts as to whether an arbitral tribunal has power to
award restitution. In England, at least, the question was resolved by the 1996
legislation; unless the parties otherwise agree, an arbitral tribunal has the same powers
as an English court to “order a party to do or refrain from doing anything”113.

(3) Injunctions: There is no objection in principle to an arbitral tribunal granting relief

by way of injunction, if requested to do so, either on an interim basis or as final relief.
An arbitral tribunal is not usually empowered to make effective orders against third
parties; and if injunctive relief is required, it is generally quicker and more effective to
seek it direct from the Court114. Most sets of international and institutional rules make
it clear that the arbitration clause is not to be taken as excluding the jurisdiction of the
relevant national Court(s) to make orders for interim measures of protection115.

(4) Declaratory reliefs: The English Arbitration Act116, made express provisions for the
granting of declaratory relief. Even when there is no such provision, however, there is
no reason in principle why an arbitral tribunal should not grant such relief. Indeed,
declaratory relief has become a common remedy in international arbitration, with
request for contractual damages often coupled with a request for declaration that there

113
Arbitration Act of 1996, Section 48(5)(a).
114
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial
Arbitration, London: Sweet and Maxwell.
115
Ibid.
116
Section 48(3)

29
 has been a breach of contract117. A declaratory award establishes the legal position
definitely and has binding effect as between the parties.

(5) Rectification: An arbitral tribunal may make an order for a rectification of a contract
if empowered to do so by the parties. If no express power is conferred by the
arbitration agreement, the question of the arbitral tribunal’s jurisdiction to order
rectification requires closer examination. For example, a standard from arbitration
clause that refers to “dispute arising under the contract” is probably not wide enough
to include a claim for rectification, since what is sought by rectification is a rewriting
of the contract to reflect what one party claims to have been the agreement actually
made118. The phrase “in connection with” in the arbitration clause may, however, be
considered to give the arbitral tribunal a wider power. In England 119, an arbitral
tribunal has the power to “order” the rectification, setting aside or cancellation of a
deed or other document unless the parties agree otherwise. This express power to
rectify is also reflected in the LCIA Rules120.

(6) Adaption of contracts and filling gaps: Adaptation of contract, or the “filling of
gaps” in it, raises a different issue from that of rectification 121. When parties have a
continuing business relationship, but have failed to provide in their contract for a
particular contingency that arises, it may be useful if they are able to refer to a helpful
outsider, such as an arbitral tribunal, for a decision on how the contingency should be
dealt with. In the same way, where the parties have entered into a long-term
agreement but circumstances change, it may be helpful if they are able to refer to an
arbitral tribunal for a decision as to what is to happen in the changed circumstances.
The problems are different. In the first situation, there is simply a “gap” in the
contract to be filled; in the second situation the contract may need to be amended, in
whole or in part, to meet changed circumstances 122. Nevertheless, in both cases, the
helpful outsider is required to perform an innovative role; that is to complete or to
rewrite the contract for the parties.
117
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial
Arbitration, London: Sweet and Maxwell.
118
Ibid.
119
English Arbitration Act 1996, Section 48(5)(c).
120
LCIA Rules, Art. 22. 1(g).
121
Bernini, “Adaptation of Contracts” in New Trends in the development of International Commercial
Arbitration and the role of arbitral and other institutions, ICCA Congress Series, No. 1.
122
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial
Arbitration, London: Sweet and Maxwell.

30
 In legal theory, the filling of gaps in a contract poses fewer problems than its
adaptation. It may only be a matter of degree, but adding an additional term to the
contract, on the basis that it meets the presumed intention of the parties, is a less
speculative undertaking than actually changing the contract to meet new
circumstances. In practice, it is thus a smaller step for an arbitral tribunal to imply a
power to fill a gap in the agreement than to imply a power to change it. Most tribunals
shrink from changing the terms of a contract unless the arbitration agreement
contained an express power. In an English case, for example, a contract for the sale of
chickens over a five-year period left the quantity “to be agreed” in subsequent years.
The parties could not agree, and the court treated the failure to agree as a “dispute or
difference” within the arbitration clause and thus capable of determination by
arbitration123.

In practice, arbitral tribunals have proved very reluctant to substitute their own views
of a fair allocation of contractual risk for that of the parties at the time the contract
was originally concluded. The ICC has drawn up special rules for the adaptation of
contracts, but also, takes the view that the role is not one best fulfilled by a
conventional arbitral tribunal124. The ICC thus, bases the power of a third party to
adapt the existing terms of a contract, or to insert new terms therein, on an express
power given by the parties; and it indicates that an arbitrator appointed, for example
under the ICC model arbitration clause, may not have such a power because the
applicable law many not permit it in the sense that an arbitral tribunal’s ability to
adapt a contract may derive from the law applicable to the substance of the dispute 125.
In some civil codes, the doctrine of rebus sic stantibus is implied. It is said that the
contract is binding “so long as things stand as they are”. The express terms may be
absolute, but if a vital change of circumstances has occurred, those terms may need to
be adapted to meet the changed circumstances 126. The doctrine is well developed in
public international law,127and stands as qualification, so to speak, of the doctrine of
pacta sunt servanda , that is to say, the doctrine that the express words of the contract
must be obeyed.

123
F. & G. Sykes (Wessex) Ltd v. Fine Fare Ltd (1967) 1 Lloyd’s Rep. 53.
124
Allan Redfern and Martin Hunter, (1999) Law and Practice of International Commercial
Arbitration, London: Sweet and Maxwell.
125
Ibid.
126
Ibid.
127
See, for instance, Bin Cheng, (1987) “General Principles of Law” (Grotius Publications Ltd).

31
 (7) Interest and costs: An award for the payment of a monetary sum generally includes
an award of interest; and an award in respect of the other forms of reliefs discussed
above may carry with it an award of costs128.

7.0 CONCLUSION

From the foregoing discussion, we have looked at what an arbitral award means, the types,
forms, substance, reliefs and remedies while referring to the arbitral institutions and other
jurisdictions apart from Nigeria.

For all we have discussed above, it is our humbly recommendation that the Nigerian
Arbitration law be amended to allow a third or presiding arbitrator to have a casting vote if an
arbitral tribunal is unable to arrive at a majority decision so as to save the arbitral tribunal
from impasse.

BIBLIOGRAPHY

CASES:

1. Mordue v. Palmer (1870) 6 Ch. App. 22.

128
Although in proceedings for a declaratory award each side often pays its own costs and shares equally those
of the arbitral tribunal.

32
2. Henfree v. Bromley (1805) 5 B. & Ad. 518.

3. Pedlen v. Hardly (1920)18 T.L.R. 591

4. Eardley v. Steer (1835) 4 Dowl. 423; 4 L.J.Ex. 293.

5. Brown v. Oesterreichischer Waldbesitzer R. G. m.b.H. [1954] 1 Q.B. at. p. 13

6. Samuel v. Cooper (1835) 2 A. & E. 752.

7. Wilkinson v. Hulse (1866) L.R. Ex. 251; Randall v. Randall (1805) 7 East 81.

8. Elsom v. Water (1847) 2 Smith 459.

9. Hawksworth v. Brammall (1839). 5 My. & Cr. 281.

10. Simmons v Swaine (1809) 1 Taunt. 549.

11. Johnson v. Wilson (1741) Willes 248.

12. Re O ‘Connor and Whitlaw (1919) 88 L.J.K.B. 1242.

13. Tomlin v Mayor of Fordwich (1836) 5A. & E. 147.

14. Thorp v. Cole (I835) 2 C.M. & R. 367.

15. Law v. Blackburrow (1853) 23 L.J. C.P. 28.

16. Lawrence v. Hodgson [1826] 1 Y. & J. 16.

17. Price v. Popkin (1839) 10 A. & E. 139; 8 L.J. Q..B. 198

18. Storke v. De Smith (1738) Willes 66; Sherry v. Richardson (1591) Pop. 15

19. Ames v. Milward (1818) 8 Taunt 637.

20. Lewis v. Rossiter (1875) 44 L.J. Ex. 136: 33 L.T. 260.

21. Bradford v. Bryan (1741) Willes 268.

22. Re Wright and Cromford Canal Co. (1841) 1 Q.B. 98.

23. Jewell v. Christie (1867) L.R. 2 C.P. 296.

24. Bland & Co. Ltd v, Russian Bank for Foreign Trade (1906) 11 Comm. Cas. 71.

33
 25. Arbitration-Mettallgesellschaft AG v. M/V Capitan Conatante and Yacimientos
Petroliferos Fiscales 790 F. 2d 280 (2nd Cir. 1986).

26. F. & G. Sykes (Wessex) Ltd v. Fine Fare Ltd (1967) 1 Lloyd’s Rep. 53.

27. Re Lord and Lord (1835), 5 E. & B. 404.

28. Wade v. Dowling (1854)23 L.J.Q.B. 302.

29. Re Underwood and Bedford and Cambridge Ry. (1861) 31 L.J.C.P.p. 10.

30. United Steelworkers of America v. Enterprise Wheel & Car Corp. 363 US 593, 598
(1960).

31. Johnson v. Lathan (1850) 19L.J.Q.B. 329

32. Barker v. Hunter (1847) 16M. & W. 672; 16L.J.Ex. 203.

33. George v. Lousley (1806) 8 Eas.

34. Trew v. Burton (1833) 1. C. & M. 712; 13 L.J.Ex. 215.

35. White v. Sharp (1844) 12M. & W. 712; 13 L.J.Ex. 215.

36. Denton v. Strong (1874), L.R. 9Q.B.117.

37. Knowles & Sons Ltd. v. Bolton Corpn. [1990]2Q.B.253.

38. Misr (Nig.) Ltd v. Oyedele (1966) 2 ALR Comm. 157.

STATUTES:

1. Bolivia, Law on Arbitration and Conciliation.

2. Brazil, Arbitration Law.

3. Belgian Judicial Code.

4. Israel, Arbitration Law 1968.

5. France, New Code of Civil Procedure.

6. Belgium, Judicial Code.

34
 7. SCC Rules.

8. American Arbitration Association, International Arbitration Rules.

9. Washington Convention, Art.

10. Egypt, Arbitration Law.

11. Swiss Private International Law.

12. Spanish 1988 Arbitration Act.

13. ICC Arbitration Rules.

14. LCIA Arbitration Rules.

15. Swiss PIL Act.

16. Bulgaria, Arbitration Law.

17. China, Arbitration Law.

18. UNCITRAL Arbitration Rules.

19. UNCITRAL Model Law.

20. ICSID Arbitration Rules.

21. Arbitration and Conciliation Act, LFN, 2004.

22. England, Arbitration Act.

23. Peru, General Arbitration Law.

24. CIETAC Arbitration Rules.

25. Stockholm Chamber of Commerce.

BOOKS/JOURNALS/INTERNET MATERIALS:

1. Reverend Father (Dr.) O. Ezike, Senior Lecturer, Faculty of Law University of

Nigeria, Enugu Campus, Lecture Notes on Law of Arbitration I & II.

35
2. Halsbury’s Laws of England, 4th Edition, Vol. 2, P. 255.

3. Aboul-Enein, M.I.M, “Dispute Settlement in International Trade, Investment and

Intellectual Property” prepared at the request of the United Nations Conference on
Trade and Development (UNCTAD) available at www.unctad.org and retrieved on
09/01/2015 at 9.00am.

4. Broches, (1984) “Recourse Against the Award; Enforcement of the Award,

“”UNCITRAL’s Project for a Model Law on International Commercial Arbitration,
ICCA Congress Series No. 2, P. 208.

5. Allan Redfern and Martin Hunter, (1999) Law and Practice of International
Commercial Arbitration, London: Sweet and Maxwell, (3rd edition, paragraph 8-16.

6. Bernardo M. Cremades, 1991, Arbitration in Spain, La ley: Butterworths.

7. John P. H. Soper, A Treatise on the Law and Practice of Arbitration, London: The
Estate Gazette, pp. 74-75.

8. Russell on Arbitration, 21st Edition.

9. Bin Cheng, (1987) “General Principles of Law” (Grotius Publications Ltd).

10. Allan Redfern and Martin Hunter, (1999) Law and Practice of International
Commercial Arbitration, London: Sweet and Maxwell

11. Paulsson & Rawding, “The Trouble with Confidentiality” Arbitration International,
Vol. 11, No. 3, pp. 303-320.

12. Bernini, “Adaptation of Contracts” in New Trends in the development of International

Commercial Arbitration and the role of arbitral and other institutions, ICCA Congress
Series, No. 1.

36