Module 4 (Part 3)- Important Points to Note

AWARD WRITING Important points to Note

Module 4 (Part 3)

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Important points to Note (1/5)

• Arbitrators may have to be selective in the findings of fact which they make. They must identify the issues which have been raised and ensure that they make all factual findings which are relevant to those issues. Having identified the issues and made the necessary findings of fact, they must then reach a conclusion on those issues and set out their conclusions in the award.
• Arbitrators should not identify an issue which has not been raised by (or with) the parties and make findings on that issue. If in their consideration of the case the Arbitrators reach the conclusion that the parties did not raise what they regard as an important issue, they have two choices. They must either ignore the issue and draft their award on the basis of the issues actually raised, or invite both parties to make further submissions to them, either in writing or orally, on the new issue.

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Important points to Note (2/5)

• It may be that as a result of the Arbitrators’ decision on one issue, another issue is no longer relevant, because a decision on it either way will not affect the outcome of the case.

EXAMPLE:

• If the Arbitrators do not reach a conclusion on any of the identified issues, they should explain in the award why they have not done so, i.e. because their conclusion on another issue has meant that the particular issue is no longer a live one.

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Important points to Note (3/5)

• Arbitrators have considerable latitude on procedure but none at all with regard to the substance of the dispute. Issues must be decided according to the law. In FCC arbitration this means that they must decide the issues according to English law, being the law chosen by the parties as governing the contract (see Rule 1.1 of the FCC Contract Rules and Section 46(1)(a) of the Act). It is not open to the Arbitrators to say that they understand the law requires a particular answer, but because they do not agree with this answer they are going to reach a different decision.

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Important points to Note (4/5)

• Frequently, the most difficult task which faces Arbitrators is actually reaching a decision. However, this is the task they undertake when they accept an appointment as an Arbitrator. If they are uncertain about what the legal position is they have the right to seek legal advice and to include the cost of that advice in the costs of the award. It is important for them to bear in mind what is called "the burden of proof". The burden is on the Claimant to prove his case but what does "proving" mean? What standard of proof is required? The answer is that, as in all civil proceedings subject to English law, the standard is "the balance of probabilities". It is not the criminal standard of "beyond all reasonable doubt". This means that Arbitrators may have a reasonable doubt whether the Claimant is right, but if on balance they conclude that he is probably right, he is entitled to an award in his favour.

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Important points to Note (5/5)

• Arbitrators should not shrink from making a finding that a party has been guilty of fraud or deception if the issue of fraud or deception is clearly raised. Although in theory the standard of proof on all issues in civil proceedings is the same (namely the balance of probabilities), it is right and it is reasonable that Arbitrators should subject a contention that a party has been guilty of fraud to a more rigorous test than they would apply to other issues.

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The position has been stated in a leading case as follows:

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