Unlike many types of domestic arbitration where unreasoned awards (often called standard awards
) are the norm, international commercial arbitration routinely
requires arbitrators to produce fully reasoned awards. However, very little
information exists as to what constitutes a reasoned award in the international
commercial context or how to write such an award.
This lacuna is extremely
problematic given the ever-in- creasing number of international commercial
arbitrations that arise every year and the significant individual and
societal costs that can result from a badly written award. Indeed, much of
the current debate about the need for appellate arbitration stems from
controversies generated by awards that fail to provide reasoning that is
sufficiently persuasive to the losing party.
Statement of Problem:
The primary focus of this project is to analyses various process-oriented and
structural issues relating to reasoned awards in international commercial
arbitration so as to improve the practical and theoretical understanding of
international awards. The project will consider various factors from both the
common law and civil law perspectives so as to take into account the blended
nature of international commercial arbitration.
- To analyze the constituents of a reasoned award
- To understand the necessity and usefulness of reasoned awards in
International Law arena
- To study the issues relating to the process and framework of writing
- To look into the various elements of the award.
Writing a reasoned award by the arbitrator is likely give an impetus to
arbitration as a preferred mode of resolving cross border business disputes.
- What constitutes a reasoned award in International Commercial
- What is the relevance of reasoned awards in International Arbitration?
The present research work is a Descriptive and Analytical Research; and
Review of Literature:
- It is Doctrinal in nature and
- It is a Mono-disciplinary Legal Research.
- The research design is Exploratory and Descriptive.
- The sources of information are both Secondary (Articles, Books,
Journals, Websites etc.) and Primary (Statutes, International Instruments,
and Government Statistics and reports etc.)
Here are some literature reviews that will illustrate that what is the approach
in this research and what are the materials which have been searched for
carrying on this project work.
- International Trade Law 6th Edition by Indira Carr (Author), Peter
- Transnational Business Problems, 5th (University Casebook Series)
Difficulties in writing a Reasoned Arbitral Award
Helping arbitrators write awards that are clear, concise and coherent is vitally
important if international commercial arbitration is to retain its place as the
preferred means of resolving cross-border business disputes. However, that
task is not as easy as it sounds.
First, the relative scarcity of published awards means that novice arbitrators
have very little to look at in the way of models. Furthermore, many of the
materials that are publicly available are typically offered only in excerpted,
digested or translated form and may not be suitable for use as
prototypes.While arbitrators could seek guidance from other types of
advocates and arbitrators, which may affect the quality and nature of
international award writing reasoned rulings that are more widely available
(such as awards generated in investment arbitration or reasoned decisions
from national courts), not all of those procedures are truly analogous to
international commercial arbitration.
Second, new arbitrators typically come to their duties with very little in the
way of formal training. Indeed, the underlying assumption is that anyone
appointed to an ad hoc tribunal or to an arbitral roster is already competent to
serve as an arbitrator as a result of that person's extensive experience as
counselInterestingly, this reliance on selection proce- dures rather than on
training is similar to the educational model adopted by the judicial systems of
many common law countries.
In those jurisdictions, judges are selected from
a pool of experienced lawyers and placed on the bench with very little
specialized training, based on the assumption that anyone who has become a top
litigator is naturally competent to take on the role of a judge.
research into judicial education and performance has demonstrated that the
skills associated with serving as an adjudicator are significantly different
than those associated with acting as an advocate. The transition to the
bench is particularly difficult with respect to the task of writing fully
reasoned rulings, with many new judges finding the �move from advocacy to
decision, from marshalling and presenting evidence to fact-finding and
synthesizing,� to be extremely challenging.
As a result, it appears
inaccurate to claim, as some authorities have, that international arbitrators
can gain the necessary skillset sim- ply through �observation, exposure,
participation and experience.�
Problems in the current system
This is not to say that arbitrators are entirely without resources, since new
and experienced arbitrators can seek out courses in award writing from any one
of a variety of institutions specializing in international commercial
arbitration. However, the current approach is problematic in several
First, it is not clear how many new or experienced arbitrators capitalize on the
opportunity to study award writing. Although some organizations require
their members to undertake continuing education in arbitration, that requirement
is usually minimal (one one-hour course per year may suffice) and does not
mandate instruction in any particular subject.
Given the various pressures
facing both new and experienced arbitrators, it is perhaps understandable
that arbitrators overlook courses in writing, particularly since many
arbitrators may feel that after decades of work as practicing lawyers, they are
already competent writers. How- ever, many people do not appreciate the extent
to which award writing differs from other forms of communication. most
difficult thing about coming on to the Court was learning to write
Arbitrators who have worked previously as judges may be particularly disinclined
to take courses in award writing, based on the belief that they already know how
to write reasoned decisions. However, arbitral awards are in many ways
different than judicial opinions, and skills learned in the judicial context may
not translate into the arbitral setting.
Current practice regarding continuing education on award writing suf- fers from
other problems as well.
For example, most arbitral institutions only ask
established arbitrators to act as faculty, presumably based on the belief that
arbitrators are the only ones who have the skills and insights necessary to
teach other arbitrators. Not only can this practice create a number of
self-reinforcing behaviors within the field as faculty members emphasize issues
that they consider to be important with little input from external or empirical
sources, but most arbitrators are not especially qualified to teach writing,
despite their practical experience in arbitration. As a result, many award
writing seminars end up focusing on personal anecdotes, basic writing techniques
or logistical concerns that do not address the deeper challenge of producing
fully reasoned awards.
Many of these educational practices mirror those traditionally seen in common
law forms of judicial education. Although those similarities might lead some
observers to conclude that the existing approach to arbitrator education is
sufficient, commentators have sharply criticized the common law judicial
education model. This phenomenon, when com- bined with the various concerns
enunciated within the arbitral community about the qualifications of
international commercial arbitrators, suggests that the existing approach to
arbitrator education needs to be changed, particularly with respect to the issue
of award writing.
Indeed, these issues suggest there is a critical need for more rigorous analysis
regarding the reasoned award requirement in international commercial
arbitration. This Article attempts to meet that need by scrutinizing the
elements of a reasoned award in international commercial arbitration and
providing both experienced and novice arbitrators with a structured and
content-based approach to writing such awards. Methodologically, the
discussion draws heavily on the large body of material involving the use and
drafting of reasoned judicial rulings in both common law and civil law
jurisdictions. However, the analysis only draws those analogies that are
appropriate, since arbitration and litigation are not identical.
What is a Reasoned Award
The first matter to consider involves the question of what constitutes a
reasoned award in international commercial arbitration. Most institutional rules
applicable to international commercial arbitration simply indicate that an award
should include reasons
, at least as a default position, with- out any further
explanation as to what is entailed by that term.
To some extent, the lack of detail regarding the shape and content of a reasoned
award may be the result of the difficulties inherent in describing a reasoned
award in the abstract. Indeed, it is often easier to identify specific examples
of fully reasoned decisions than to provide a categorical definition of what
constitutes adequate legal reasoning. Nevertheless, various authorities have
attempted to provide a more detailed explanation of what constitutes a reasoned
award. Thus, a reasoned ruling may be described as one that includes findings of fact and conclusions of law based upon the evidence as a whole . .
. [and that] clearly and concisely states and explains the rationale for the
decisions so that all can determine why and how a particular result was
As useful as this definition may seem, it only goes so far, since finding the
appropriate methodology for distinguishing questions of fact from questions of
law [is], to say the least, elusive. Indeed, the practical truth [is]
that the decision to label an issue a question of law, a question of fact, or a mixed question of law and fact is sometimes as much a matter of
allocation as it is of analysis.
These kinds of practical difficulties suggest that the best way to define a
reasoned award may be through a functional analysis. That sort of approach
is particularly useful in this setting because a functional inquiry not only
overcomes various differences that exist between common law and civil law legal
reasoning (an important feature given that international commercial arbitration
consciously blends elements from both the com- mon law and civil law legal
traditions), it also takes into account the various ways that arbitral awards
differ from reasoned rulings generated by a court.
Importance Of Reasoned Awards in International Commercial Arbitration
Some people appear to believe that reasoned rulings are an exclusive feature of
the common law legal tradition. However, civil law countries have long
considered reasoned legal opinions to be essential to procedural justice, even
though the shape of a civil law judicial opinion can differ significantly from
what is standard in common law jurisdictions. For example, reasoned
decisions in France are usually quite short and formulated in a single
sentence, including several whereases (attendus).
However, other civil law jurisdictions, most notably Germany, often generate
reasoned opinions that are remarkable for their length and thoroughness.
Although French courts consider very brief, highly deductive opinions to be
sufficiently reasoned as a matter of procedural fairness, this particular
structural approach does not appear to have been routinely adopted in
international commercial arbitration. Instead, the concept of a rea- soned
award in international commercial arbitration appears to more closely resemble
the longer, more discursive models seen in the common law and in civil law
jurisdictions like Germany. Thus, most awards in international commercial
arbitration currently run dozens of pages in length.
When considering why reasoned awards might be useful or necessary in
international commercial arbitration, it is helpful to distinguish structural
rationales for reasoned rulings from non-structural rationales. This approach
not only overcomes matters relating to the common law-civil law divide, it also
helps identify rationales that are exclusively associated with judicial rulings
and that are therefore inapplicable in the arbitral context.
Structural Rationales for Reasoned AwardsPerhaps the most well-known structural rationale supporting the use of reasoned
rulings comes from the common law legal tradition, which requires �subsequent
courts to adhere to the legal conclusions established in earlier judgments
rendered by courts whose decisions are binding upon the ruling
court. Reasoned decisions are used in common law jurisdictions to provide the necessary reasoning (the ratio decidendi) for courts bound to adhere to
precedent under stare decisis. Because the principle of stare decisis does
not technically apply in international commercial arbitration, this rationale
does not appear applicable to the arbitral forum, strictly speaking.
However, arbitral awards are considered very important forms of per- suasive
authority and have been said to reflect a type of soft precedent in certain
types of international disputes (most notably those involving in- vestment and
sports arbitration) and in certain types of matters (most notably those
involving arbitral procedure).
The willingness of international arbitrators
to consider and in many cases follow the reasoning reflected in previous awards
can be traced directly to the need for predictability and consistency in
international commercial arbitration. Interestingly, the approach used in
international commercial arbitration is similar to that found in many civil law
countries, where judges routinely follow the decisions of higher level courts,
even if the principle of precedent does not apply, so as to promote
predictability and consistency. Thus, reasoned awards may be said to be
useful for this first type of structural purpose, even if they are not strictly
Reasoned rulings serve other structural purposes. For example, rea- soned
decisions are used in both common law and civil law jurisdictions to give
context to lower court decisions and thereby help appellate courts determine
whether and to what extent to uphold the judgment below.
Initially, this rationale might also appear inapplicable to international
commercial arbitration, since most jurisdictions do not allow courts to re- view
the merits of an arbitral award. However, some jurisdictions, most notably
England, do allow judicial appeals of international awards, which could be seen
as providing arbitrators with a strong incentive to render well-written reasoned
awards in arbitrations seated in England.
International awards may also be subject to other types of post-award scrutiny,
both inside and outside of England. One type of post-award judicial
procedure involves a challenge to enforcement, either at the seat of arbitration
or in a foreign jurisdiction. Although these types of actions usually focus on
procedural matters, the likelihood of a challenge being brought in the first
place may be affected by the quality of the reasoning found in the underlying
award. For example, a well-written and fully reasoned award may persuade the
losing party that a decision is well-sup- ported, even if the outcome is
Alternatively, a fully reasoned award may diminish the likelihood
of a judicial challenge by eliminating certain grounds for non-enforcement, as
might be the case in situations where an international arbitral tribunal
explicitly takes European competi- tion or U.S. antitrust law into account,
thereby dissuading the losing party from challenging an award in European or
U.S. courts on certain public policy grounds.
Another type of post-award procedure involves collateral proceedings. These
types of actions may be on the rise, given the increasing incidence of parallel
proceedings in international commercial disputes. Although the law
concerning preclusion and collateral estoppel are not as well developed in
arbitration as in litigation a court may find itself unable to give preclusive
effect to a ruling or award that is unreasoned, since the court cannot determine
whether a particular issue was fully and fairly argued in the earlier action.
The final type of post-award procedure involves arbitral appeals, which are an
entirely private, contractually created means of appealing the substance of an
arbitral award. Over the last few years, several arbitral organizations have
established formal procedures for appellate arbitra- tion.
The evolution of
this particular procedure has important ramifications for the award writing
process, both at first instance and on appeal. For example, arbitrators hearing
a dispute as an initial matter may need to be increasingly aware of the quality
of their awards both to avoid creating an appealable issue and to provide an
appellate tribunal with a solid understanding of how and why the initial
decision was made. Questions will also arise as to whether and to what
extent an appellate award can or should differ from an award at first instance
as a matter of form or content.
Non-Structural Rationales for Reasoned AwardsAs the preceding discussion suggests, there are a number of structural
rationales supporting the use of reasoned awards in international commercial
arbitration. These structural reasons apply despite the various functional
differences between litigation and arbitration. However, there are also several
non-structural reasons why reasoned awards are useful or necessary in
international commercial arbitration.
First and perhaps most importantly, reasoned awards provide key assurances
regarding the nature and quality of justice that is being dispensed by the
arbitrator. Commentators have noted that both common law and civil law
jurisdictions have recognized a �procedural trinity� that is neces- sary to
establish the rule of law.
The three constituent elements include:
- the audiatur principle (audiatur et altera pars), which in En- gland
and America forms part of natural justice and due process of law;
- explicit reasons and fact finding; [and]
- the right to appeal.
While parties in arbitration are allowed to waive the right to an appeal as well
as the right to explicit reasons and fact finding, such waivers are not a
required feature of arbitration. To the contrary, as the recent de- bate about
arbitral appeals has shown, parties can enforce these procedural rights to the
extent consistent with the arbitral setting.
Thus, while it remains to be seen
how the reasons requirement in international commercial arbitration compares to
similar standards applicable in litigation, it is clear that arbitrators must
provide some minimal level of reasoning once the parties have requested a
reasoned award. In fact, the length and de- tail associated with reasoned
awards in international commercial arbitration suggests that international
arbitrators are far exceeding any minimum requirements.
Second, use of reasoned awards improves the quality of the decision- making
process and consequently of the decision itself. As U.S. Circuit Judge
Richard Posner has noted, [r]easoning that seemed sound when in the head may
seem half-baked when written down, especially since the written form of an
argument encourages some degree of critical detachment in the writer, who in
reading what he [or she] has written will be wondering how an audience would
By encouraging arbitrators to articulate their reasons for following
a particular course of action, rea- soned awards help increase the rationality
of the process, minimize the likelihood of arbitrary decisions, prevent the
introduction of irrelevant is- sues into the analysis, decrease the possibility
of reliance on unreliable evidence and promote justice while simultaneously
showing society that these aims are being met.
Third, reasoned awards can be said to enhance the legitimacy of the arbitral
process in the eyes of the arbitrators, the parties and the public by
demonstrating the seriousness and integrity of the arbitral
endeavor. Reputational concerns may be particularly important as
international arbi- tration comes under increased attack for matters ranging
from the lack of transparency to the supposedly preferential treatment of large,
Fourth, reasoned awards provide parties with a more detailed and satisfactory
explanation of why the arbitrator decided as he or she did. This feature can be
quite important, since parties including parties to commercial disputes are
often motivated as much by emotion as by logic, and a party who believes that he
or she has not been fully heard
during the arbitration (a phenomenon that
could be directly affected by the quality or content of the award) might mount a
challenge, even if the chance of prevailing seems relatively low.
empirical studies have shown that the perceived fairness of arbitration
hearings significantly predicts litigant decisions to accept an arbitration
decision, which suggests that fully reasoned awards are beneficial to
international commercial arbitration at both an individual and systemic level.
Conclusion & Suggestions
As the preceding discussion suggests, writing a reasoned award is one of the
most important and challenging tasks that an international arbitrator must
undertake. Not only do international awards typically reflect the same degree of
analytical complexity as many judicial decisions, they also require a uniquely
international perspective that is very difficult to master.
Learning to overcome
the allure of parochialism and incorporate key elements of both the common law
and the civil law legal traditions into one's legal analysis is something that
requires a great deal of skill and train- ing. Unfortunately, the arbitral
community has adopted the view that international arbitrators can become
competent in award writing simply through observation, exposure, participation
To some extent, this highly deferential approach to arbitral education would
appear unassailable, since it strongly resembles the standard means by which
many common law jurisdictions have educated their judges. However, experts have
expressed a number of concerns about the efficacy of the common law approach to
judicial education, thereby raising similar questions about the nature and
quality of arbitral education, particularly with respect to award-writing.
The current approach to arbitral education has also been defended on the grounds
that market forces will ensure the requisite degree of competence in writing
international awards. The hypothesis is that good arbitrators meaning those that
can and do comply with national and international requirements regarding
reasoned awards and who reflect inappropriately international perspective in
their analyses will be re- warded through repeat appointments, while those
arbitrators who do not rise to the task of drafting an adequate award will
eventually find them- selves without jobs.
However, this argument breaks down in
several ways. First, commentators have long recognized that the lack of
transparency in international commercial arbitration can allow sub-standard
arbitrators to continue to work for a significant period of time. Second,
experts have noted that that no selection method can guarantee the continued
fitness of an adjudicator. Indeed, many judges turn out to be ill-suited for
the job, despite having complied with selection procedures that are ostensibly
more rigorous than those facing international arbitrators.
As it turns out, there are a number of ways to improve the skills of
international arbitrators. One is to increase the number and quality of
educational opportunities concerning award-writing in international commercial
arbitration. In so doing, the arbitral community can consider some of the recent
innovations in judicial education to see what types of improvements are possible
on both a procedural and substantive level. For example, educational providers
can combine in-person sessions with written guidebooks so as to take the
particular needs and learning style of international arbitrators into account.
Another possibility is to create more rigorous standards regarding arbitrator
education, such as by imposing a mandatory minimum regarding the number or type
of courses a new or experienced arbitrator should take. Similar initiatives have
met with significant resistance in the judi-cial context on the grounds that
such measures were somehow insulting
, and similar types of objections can be
anticipated in the arbitral context. However, mandatory minimums in
arbitrator education would be consistent with other efforts to improve the
quality of international com mercial arbitration. Furthermore, mandatory
education would help overcome the fact that those individuals who are most in
need of additional training are often the least likely to recognize that need.
At this point, international commercial arbitration is considered to be one of
the legal world's most remarkable success stories, and nothing in this Article
should be taken as criticizing the excellent work done by the large majority of
international arbitrators. Indeed, studies suggest that most observers and
participants appear satisfied with decision-making in international commercial
However, the arbitral community must continue to be vigilant if
international commercial arbitration is to retain its position as the preferred
method of resolving cross-border business disputes. One of the best ways of
ensuring the continued excellence of international commercial arbitration is to
ensure the quality of reasoned awards. While it is not recommended that the
international arbitral community attempt to adopt a single standard approach to
award writing, new and experienced arbitrators would undoubtedly benefit from an
improved understanding of what is involved in a reasoned award.
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Commercial Arbitration........... 3
- Bryan A. Garner, Why Lawyers Can�t Write........... 5
- International Centre For Dispute Resolution (Icdr) International
Arbitration Rules............ 7
- J.J. George, Judicial Opinion Writing Handbook........... 10
- Livingston Armytage, Educating Judges: Towards A New Model Of...........
- Nadja Erk-Kabat, Parallel Proceedings In International Arbitra- Tion: A
European Perspective........... 11
- Peter De Cruz, Comparative Law In A Changing World........... 10
- Laurence Craig, The Arbitrator's Mission and the Application of Law in
International Commercial Arbitration........... 9
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International Commercial Arbitration,........... 1
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- Dow Chemical (Fr., U.S., Switz. v.
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go.adr.org/appellaterules [hereinafter AAA Appellate Rules]; International
Institute for Conflict Prevention and Resolution (CPR) Arbitration Appeal
Procedure and Commentary, https://www.cpradr.org/Portals/0/Resources/ADR%20Tools/Clauses%20&%20Rules/CPR
 Kass, supra note 85, at 35.
 Gunnar Bergholtz, Ratio et Auctoritas: A Comparative Study of the
Significance of Reasoned Decisions with Special Reference to Civil Cases, 33
SCANDINAVIAN STUDIES IN LAW 11, 44 (1989); see also Rogers, Vocation, supra note
21, at 985 n.97 (claiming the product of international arbitral decision-making
 Gunnar Bergholtz, Ratio et Auctoritas: A Comparative Study of the
Significance of Reasoned Decisions with Special Reference to Civil Cases
 Lloyd et al., supra note 3, at 27;
 GEORGE, supra note 73, at 27;
 Richard A. Posner, Judges Writing Styles (And Do They Matter?), 62 U. CHI.
L. REV. 1421, 1447-48 (1995).
 fitzmaurice & O'Connor, supra note 3, at n.19.
 Alan Scott Rau, Integrity in Private Judging, 38 S. TEX. L. REV. 485, 532
 Strong, Judicial Education, supra note 23, at 2-5
 ARMYTAGE, supra note 34, at 149