note on correction and interpretation of arbitral awards

197 Pages·2016·2.91 MB·English

31 March 2014

NOTE ON CORRECTION AND
INTERPRETATION OF ARBITRAL AWARDS

Procedure under Article 29 (1998 Rules) / 35 (2012 Rules)

Article 29 of the 1998 ICC Rules of Arbitration provides:

"1. On its own initiative, the Arbitral Tribunal may correct a clerical, computational or
typographical error, or any errors of similar nature contained in an Award, provided such
correction is submitted for approval to the Court within 30 days of the date of such Award.

2. Any application of a party for the correction of an error of the kind referred to in Article 29(1),
or for the interpretation of an Award, must be made to the Secretariat within 30 days of the
receipt of the Award by such party, in a number of copies as stated in Article 3(1). After
transmittal of the application to the Arbitral Tribunal, it shall grant the other party a short time
limit, normally not exceeding 30 days, from the receipt of the application by that party to submit
any comments thereon. If the Arbitral Tribunal decides to correct or interpret the Award, it shall
submit its decision in draft form to the Court not later than 30 days following the expiration of the
time limit for the receipt of any comments from the other party or within such other period as the
Court may decide.

3. The decision to correct or to interpret the Award shall take the form of an addendum and shall
constitute part of the Award. The provisions of Articles 25, 27 and 28 shall apply mutatis
mutandis."

Furthermore, Article 2(7) of Appendix III provides:

"In the case of an application under Article 29(2) of the Rules, the Court may fix an advance to
cover additional fees and expenses of the Arbitral Tribunal and may subordinate the
transmission of such application to the Arbitral Tribunal to the prior cash payment in full to the
ICC of such advance. The Court shall fix at its discretion any possible fees of the arbitrator
when approving the decision of the Arbitral Tribunal."

Article 35 of the 2012 ICC Rules of Arbitration provides:

"1. On its own initiative, the arbitral tribunal may correct a clerical, computational or
typographical error, or any errors of similar nature contained in an award, provided such
correction is submitted for approval to the Court within 30 days of the date of such award.
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reproduced or copied in any form or by any means, or translated, without the prior permission in writing of ICC.
NOTE ON CORRECTION & INTERPRETATION OF ARBITRAL AWARDS | 2

2. Any application of a party for the correction of an error of the kind referred to in Article 35(1),
or for the interpretation of an award, must be made to the Secretariat within 30 days of the
receipt of the award by such party, in a number of copies as stated in Article 3(1). After
transmittal of the application to the arbitral tribunal, the latter shall grant the other party a short
time limit, normally not exceeding 30 days, from the receipt of the application by that party, to
submit any comments thereon. The arbitral tribunal shall submit its decision on the application in
draft form to the Court not later than 30 days following the expiration of the time limit for the
receipt of any comments from the other party or within such other period as the Court may
decide.

3. A decision to correct or to interpret the award shall take the form of an addendum and shall
constitute part of the award. The provisions of Articles 31, 33 and 34 shall apply mutatis
mutandis. "

Furthermore, Article 2(10) of Appendix III provides:

"In the case of an application under Article 35(2) of the Rules […], the Court may fix an advance
to cover additional fees and expenses of the arbitral tribunal and additional ICC administrative
expenses and may make the transmission of such application to the arbitral tribunal subject to
the prior cash payment in full to the ICC of such advance. The Court shall fix at its discretion the
costs of the procedure following an application […], which shall include any possible fees of the
arbitrator and ICC administrative expenses, when approving the decision of the arbitral tribunal."

Article 29(1) (1998 Rules) / 35(1) (2012 Rules)

If the arbitral tribunal decides to correct the award on its own initiative, it should inform the
parties and the Secretariat of its intention to do so and grant the parties a short time limit to
comment. The arbitral tribunal should submit the draft Addendum to the Court for scrutiny within
30 days of the date of the award.

Article 29(2) (1998 Rules) / 35(2) (2012 Rules)

Upon receipt of an Article 29(2) (1998 Rules) / 35(2) (2012 Rules) application, the Secretariat may
submit the matter to the Court for it to consider whether, in view of the circumstances of the case,
an advance to cover additional fees and expenses of the arbitral tribunal and additional ICC
administrative expenses (Article 2(10), Appendix III, 2012 Rules) is warranted. Should the Court fix
an additional advance, such advance must be paid before the Secretariat will transmit the
application to the arbitral tribunal. Otherwise, the Secretariat will transmit the application directly to
the arbitral tribunal. As such, the arbitral tribunal should not address an application until the
Secretariat transmits it to them.

If the Court did not ask for an advance on costs at the time when the application was submitted to
the Secretariat, it can, in exceptional circumstances, take a decision on costs at the time of the
scrutiny and make the notification of the Addendum or the Decision contingent upon the payment
by one or both parties of the costs fixed by the Court.

Upon receipt of the application from the Secretariat the arbitral tribunal should grant the other
parties a short time limit, normally not exceeding 30 days, for comments.

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NOTE ON CORRECTION & INTERPRETATION OF ARBITRAL AWARDS | 3

The arbitral tribunal should then submit its draft decision to the Court for scrutiny not later than 30
days following the expiration of the time limit granted for comments. Should the arbitral tribunal
require an extension of such time limit, it should inform the Secretariat.

Depending upon the arbitral tribunal’s decision, such decision can take one of four forms:

1. Addendum: if the arbitral tribunal decides to correct or interpret the award, as this shall
constitute part of the award.
2. Decision: if the arbitral tribunal decides that the award does not need to be corrected or
interpreted and does not take a decision on costs.
3. Addendum and Decision: if there are two or more applications and the arbitral tribunal
decides to correct or interpret the award on the basis of one or more, but not all applications.
4. Decision and Addendum on Costs: if the arbitral tribunal decides that the award does not
need to be corrected or interpreted but takes a decision on costs related to the application.

General Considerations

All decisions should contain the reasons upon which they are based
(Article 25(2) (1998 Rules) / 31(2) (2012 Rules)). They should also include operative conclusions
("dispositif") or a finding that the application is rejected. For further guidance about what should be
included in the draft decision, see the ICC Checklist on Correction and Interpretation of Arbitral
Awards. The Court will scrutinise the draft decision (Article 27 (1998 Rules) / 33 (2012 Rules)), and
upon approval thereof it should be signed by the arbitral tribunal (Article 25(1) and (3) (1998 Rules)
/ 31(1) and (3) (2012 Rules)) and sent to the Secretariat for notification to the parties (Article 28
(1998 Rules) / 34 (2012 Rules)).

In all cases the arbitral tribunal must first ensure that mandatory rules of law at the place of
arbitration do not exclude the correction or interpretation of an award by the tribunal.

Where the relevant national law or court practice provide specific circumstances in which an
arbitral tribunal may render certain decisions other than corrections or interpretation regarding an
award which had been approved and notified, such situations shall be treated in the spirit of this
Note.

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reproduced or copied in any form or by any means, or translated, without the prior permission in writing of ICC.
31 March 2014

NOTE ON ARTICLE 36(4)

1. The International Court of Arbitration of the International Chamber of Commerce (“Court”)
fixes advances on costs to cover the fees and expenses of the arbitral tribunal and the ICC
administrative expenses (“advance on costs”).

2. This Note provides information on how the Court will fix advances on costs when:

(i) one or more additional parties are joined in an arbitration (Article 7); and/or

(ii) claims are made between multiple parties (Article 8).

3. In such situations, the Court shall fix the advance on costs and the respective portions
thereof to be paid by each party (Article 36(4)).

4. In all other situations, the Court shall fix the advance on costs which shall be payable by
each side in equal shares (Article 36(2)). The Court may fix separate advances on costs
where counterclaims are submitted by Respondents, in which case, each of the parties shall
pay the advance on costs corresponding to its claims (Article 36(3)).

Advance on Costs

5. The Court may fix one or more advances on costs where claims are made under Articles 7
and 8 of the Rules. However, in most situations including those outlined at (i) and (ii) above,
the Court is likely to fix one advance on costs.

6. We invite you to refer to the the Cost Calculator on the ICC website to estimate the advance
on costs.

7. Where the Court apportions the advance on costs, it determines the amount that each party
must pay towards the advance on costs. When doing so, the Court will ensure that a party
shall only contribute towards the claim or claims in which it is involved (“Claims”). The
amount payable by each party shall be proportionate to the value of those Claims in relation
to the total amount in dispute in the arbitration.

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NOTE ON ARTICLE 36(4) | 2

Apportionment of the Advance on Costs

8. The Court will apportion the advance on costs by:

(i) calculating advances for each set of Claims (“Partial Advance”);

(ii) adding up the Partial Advances; and

(iii) calculating the percentage that each Partial Advance forms as part of the total amount
(“Percentage).

9. Such apportionment generally will not increase the advance on costs fixed by the Court.

Calculation of the Amount to be paid by Each Party

10. The Percentages are applied to the advance on costs to calculate the respective amounts
payable by each party in relation to each set of Claims (“Amounts Payable”).

11. The Amounts Payable by a party are then added together to form that party’s share of the
advance on costs.

12. Please inform the Secretariat of any agreement between some or all of the parties in relation
to payment of the advance on costs so that each party’s share of the advance on costs may
be calculated accordingly. Absent any such agreement, if the Court apportions the advance
on costs, it will determine the apportionment as follows:

(i) For each set of Claims, the portion shall be payable fifty percent by the parties bringing
said Claims and fifty percent by the parties defending said Claims.

(ii) If there are multiple parties either bringing or defending each set of Claims, the
co-claimants or co-respondents respectively will bear their fifty percent share equally.

13. Should a party fail to pay one or more of the Amounts Payable that form its share of the
advance on costs, the Secretariat will invite the other parties involved in that set of Claims to
pay the outstanding Amounts Payable.

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reproduced or copied in any form or by any means, or translated, without the prior permission in writing of ICC.
31 March 2014

NOTE ON EMERGENCY ARBITRATOR PROCEEDINGS

This Note emphasizes some essential elements that the emergency arbitrator should take into
account throughout the proceedings under the Emergency Arbitration Provisions in the Rules of
Arbitration of the International Chamber of Commerce (“Rules”).

Request for Arbitration

1. The President of the International Court of Arbitration of the International Chamber of
Commerce (“President”) will terminate the emergency arbitrator proceedings if a Request for
Arbitration has not been received by the Secretariat within 10 days of the Secretariat’s
receipt of the Application, unless the emergency arbitrator determines that a longer period of
time is necessary (Article 1(6) of Appendix V).

Procedural Timetable

2. The emergency arbitrator’s first task is to establish a procedural timetable as soon as
possible, normally within two days from the transmission of the file to the emergency
arbitrator (Article 5 of Appendix V).

3. In doing so, the emergency arbitrator must ensure that the responding party is granted time
to comment on the Application.

The Order

4. The Order must be made no later than 15 days from the date on which the file was
transmitted to the emergency arbitrator (Article 6(4) of Appendix V). The President may
extend the time limit pursuant to a reasoned request or on the President’s own initiative if he
decides it is necessary to do so (Article 6(4) of Appendix V).

5. As emergency arbitrator proceedings do not provide for scrutiny of any Order rendered, the
ICC Emergency Arbitrator Order Checklist may serve as guidance to the emergency
arbitrator in drafting the Order, particularly regarding decisions on jurisdiction, the place or
language of the emergency arbitrator proceedings.

6. When notifying the Order to the parties, the emergency arbitrator must send to the
Secretariat two originals of the Order. The Secretariat will retain such originals in its records
together with the correspondence and other decisions taken by the President and the Court.

Acting as Arbitrator

7. An emergency arbitrator must not act as an arbitrator in any arbitration relating to the dispute
that gave rise to the Application (Article 2(6) Appendix V).
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reproduced or copied in any form or by any means, or translated, without the prior permission in writing of ICC.
Division of the prior sessions between the 3 of us so that we can feed all the relevant discussions
into each the final session.

Session 1

-
 Legislative Developments in Russian Arbitration
(IN)

- Damages in International Arbitration (MH)

- Russia’s Pivot to Asia (RDC)

Session 2

- Administrative Litigation (IN)

- Technology and Arbitration (RDC/MH)

Session 3

- Uncovering Fraud/ Asset Tracing and Recovery Across Borders
(IN)

- Choice of Forum (HM)

- Sanctions (RDC)

Session 4

- Foreign Sovereign Immunity: Testing the Strength of the Protective Shield (IN)

- Russian Market Exit-Related Dispute

- International Judicial Assistance

Collecting any questions submitted to the ABA in advance (as has been invited)

- Moderators to think of other issues and questions

- MH to come with a list of case examples that have given rise to interesting issues with
a view to identifying questions for the audience about what decisions they would have
made and what they think the actual result was in particular cases (ie. employ ad hoc
survey to get the audience engaged).
Co-ordinating with the moderators of each session and line them up to provoke debate
(rapporteur-style) as a contingency plan.

- Yes. Send e-mail

Finding other ways to plant questions through members of the co-ordinating committee and
others.

- E-mail to them.

How we introduce the plenary debate and divide it between us.

- Introduce ourselves
- Explain the aim of this session and stress the contribution required from the audience
- Stress that this is an opportunity for delegates to ask questions that they did have an
opportunity at the roundtables they attended and also to ask question in relation to topics
covered by roundtables that they were unable to attend
- Summarise
- Invite moderators to provide short comments and observations (relevant moderators)
- Invite anyone else who has submitted a question in advance to raise that question.

Meeting and discussion between the 3 of us over the coffee break prior to the plenary session to
finalise plans/update each other on developments during the day.

CLE Materials
ICC COMMISSION REPORT
DEcisions on cosTs
in inTERnATionAL
ARBiTRATion
OFFPRINT FROM
ICC Dispute Resolution Bulletin
2015, Issue 2
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