by Christian Oetiker, VISCHER AG, Basel
Together with Christian Benz and Simon Gabriel, I had the pleasure of participating in the session on award writing at the Swiss Arbitration Academy. The session was part of Module 4 and took place in Zurich at the end of January 2019.
Daniele Favalli, responsible for Module 4, had invited us to speak on two or three aspects of award writing that each of us deemed important. Very interesting was that every speaker highlighted different aspects. This led to a lively debate involving the speakers and participants of the Academy.
Excellent quality and a pleasure to read
My two points were that an award should be at the same time of excellent quality and a pleasure to read. I suggested that there are three ingredients necessary to achieve both: a good structure, a fact driven assessment of the parties' arguments, and clear conclusions.
A good structure
What is a good structure for an award? I like to paraphrase this as a sound combination of a text telling a story which is interesting to read and a telephone book in which you can easily find what you are looking for. Indeed, the award must be written in a way that it is interesting to read it from the beginning to the end. At the same time, the structure must allow the reader to find specific aspects quickly.
The first part of the award should set the scene. This is particularly important for readers who did not participate in the proceedings such as a state court dealing with set-aside proceedings. This part will usually contain an introduction, a description of the terminology used in the award, the parties (the "actors" in the story) and the contractual relationships, the factual background and the procedural history. This first part will also deal with jurisdiction and the governing law.
The second part of the award then contains the assessment of the parties' claims. It will usually start with a broad overview of the parties' positions (describing the "essence" of their case) and the relevant issues. The structure of this part will depend on the arbitral tribunal's legal analysis of the case. The sequence of the issues dealt with is important and must be logical and convincing.
Then this second part will proceed to deal with each pertinent issue in turn. I suggest applying the following structure: claimant's position, respondent's position, the applicable legal framework, the applicable contractual framework, the arbitral tribunal's assessment, and the conclusions (what does it mean in relation to the claim?). Following this structure will not only help the reader, but also the author of the award.
A fact driven assessment of the claims
In this second part, an important ingredient is a fact driven assessment. What do I mean by that? When setting out the parties' positions, the award should spell out what the parties actually said in their briefs and at the hearing and refer to witnesses statements. The award should avoid general descriptions of the parties' positions or the arbitral tribunal's assessment, but be specific and rely on what the parties and their witnesses specifically said. Citing statements verbatim may be a good tool to achieve this. The parties must be able to recognize their own case in the text. If they do not, this will cast doubt on the quality of the award.
Clear conclusions
Finally, the arbitral tribunal should be brave in stating clear findings and conclusions. This means that the award must make clear why a question was dealt with, what conclusions were reached regarding this question, and what impact or importance this conclusion has on the overall assessment.
The result will be an award that is well structured, takes into account what the parties and the witnesses actually said, and draws clear conclusions. In short: excellent quality and a pleasure to read.
