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Stockholm International Arbitration Review (SIAR) 2006-2
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DELIBERATIONS OF THE ARBITRAL
TRIBUNAL - ANALYSIS OF REASONED
AWARDS FROM A SWEDISH PERSPECTIVE
Finn Madsen and Peter Eriksson*
1. INTRODUCTION
1.1. General remarks
In 1989, in an article in the Journal of International Arbitration, Robert
Coulson - at the time President of the American Arbitration Association -
posed the question whether we know how arbitration panels decide. In the
article,1 Coulson presented the results of a study conducted by the
American Arbitration Association in which a number of randomly chosen
arbitrators responded to questions relating to decision-making in domestic
commercial arbitration practised in the United States. According to this
study, informal consensus appeared to be the normal method used by
arbitrators in reaching a decision and Coulson pointed out that the
respondents stated that it was often not necessary to take a vote.
In reporting these findings, Coulson touched upon an issue on which we
intend to elaborate on more closely in this paper. There appears to be a
prevailing view among legal practitioners and academics that an arbitration
panel in an international commercial arbitration should decide the award
following deliberations among the arbitrators.2 There also seems to be a
view that no rules exist as to how these deliberations are to be structured or
carried out in practice. An example will serve to illustrate the crucial nature
of the manner in which the decision-making process is carried out:
In an arbitral proceeding, the claimant has claimed damages and
invoked certain circumstances in support thereof. The claim brings
to the fore two separate issues of fact, each of which bears directly
on the outcome of the claim3 and which we denote as A and B
respectively. In order to grant the claim, matters A and B must
both be answered in the affirmative. During the deliberations,
arbitrators X, Y and Z take the following positions with regard to
the separate issues, as well as to the claim.
1. INTRODUCTION
1.1 General remarks
1.2 Scope and aim
2. GENERAL PROVISIONS REGARDING DELIBERATIONS
2.1 Provisions of national arbitration laws
2.2 Rules of the arbitration institutes
2.3 Case law and legal literature
2.3.1 General remarks
2.3.2 Failure of an arbitrator to participate in the deliberations
2.3.3 Exclusion of an arbitrator from the deliberations
3. A SYSTEMATIC APPROACH
4. REASONED AWARDS
4.1 Provisions of national arbitration laws
4.2 Arbitration institute rules
4.3 Legal literature
4.4 Position of national courts
4.5 Lack of reasons and public policy
4.5.1 General remarks
4.5.2 International public policy
4.6 ICSID annulment proceedings
4.6.1 Klöckner v. Cameroon
4.6.2 Amco v. Indonesia and Guinea v. MINE
4.6.3 Wena v. Egypt
5. ABSENCE OF REPLY TO THE ARGUMENTS OF THE
PARTIES
5.1 Introductory remarks
5.2 Case law
6. DISSENTING OPINIONS
6.1 General remarks
6.2 Selection of material
6.3 Implications of dissenting opinions
7. CONCLUSIONS
7.1 General
7.2 How do the requirement of reasoned awards and the
necessity to respond to certain arguments affect the
deliberations and decision-making?
7.3 The case for formulating other voting/decision issues
than the claims per se
Finn Madsen is a member of the Swedish Bar, a partner in Advokatfirman Vinge KB and based in Malmö, Sweden. Finn Madsen is the author of Commercial Arbitration In Sweden, printed in a second edition by Oxford University Press (2006).
Peter Eriksson is a former associate of Advokatfirman Vinge KB in Malmö and presently serves as a law clerk at the District Court of Malmö
