Arbitration Award Writing - Lecture Notes - Combined

Arbitration Award Writing Topic 1: Introduction and Issues & Deciding (continued)
Topic 1 : Introduction and Issues & How to

Decide (continued)
Topic Preview
This Topic effectively continues the Arbitration Practice &
Procedure Course into the final act of an arbitral tribunal – the
writing of an enforceable, reasoned domestic Final Award.
Students are reminded to re-read the Arbitration Practice &

Procedure Course –especially Topics 2, 5 & 6– as a preliminary
to this Topic which includes sections on :
– Contentions on issues
– Summarising evidence
– Findings of fact
– Dealing with legal submissions
– Writing out decisions
– Calculations
– How to deal with arguments
Topic Content
1. Introduction
Legislative provisions usually require that an Award contains the

reasons for the Award unless it is an agreed / consent Award or the
parties have agreed to dispense with reasons. There has been much
discussion about what reasons in an Award should be.
The most useful approach is to think of an Award being the only
document before a foreign Court in an application for its
enforcement.
As such, it should be a complete document, giving :
• a sufficient history of the dispute and the arbitration that
makes it fully and unambiguously understood
• (with the attachment of copy documents, if necessary) and
• all important documentary and oral evidence (including
major points that are rejected) should be summarised with
logical discussion from it leading to a clear summary decision
on everything –all the issues and claims– in dispute.
© 2017 WB McLaughlin, Training & Education Officer, SICA®-FICA® and Faruq Khan sica-fica.org
for The Robert Gordon University 1

2. Contentions on the Issues

An Arbitrator has to consider and come to a reasoned conclusion on
each issue in his list of issues and the correct identification of each
one in sequence will give him the framework necessary to set about
dealing with them. Referring to his notes of evidence from an oral
hearing, each issue should be put on a separate page with an
appropriate heading so that all the evidence relevant to it can be
noted for consideration.
In respect of each issue, the Arbitrator should summarise briefly :
(i) the contentions of the parties ;

These will come from the pleadings: the respective submissions (Statements of Case; Statement of Claim &c).
(ii) the relevant evidence from witnesses ; and
(iii) the representations (opening and closing statements) made

by the parties.
This is where it is useful to allocate all the evidence and the submissions when they are received under whatever
issue(s) to which it may refer in order to compare the parties’ contentions.
3. Summarising Evidence
When summarising evidence, it helps a reader if words and phrases
are varied, always keeping to the basic requirements to be clear
and complete. Try to avoid a list of
Mr A said.....” but “Ms B stated.....” while “Miss Y asserted…”
and “the expert witness Dr Z noted &c.
Arbitral Awards are not meant to be prize essays but it helps to vary
language in them, such as :
Mrs T “corroborated that”, “gave evidence that”, “recalled”,
“recounted how”, “related”, “testified that”, “told me” ;
and, in referring to evidence obtained from cross-examinations :
Dr X “accepted”, “admitted”, “conceded”, “countered that”,
“explained how,” “maintained”, “replied”, “reported”,
“responded” ;
and, when summarising submissions, vary usage as follows :
“agreed”, “argued”, “conceded”, “considered”, “contended”,
“maintained”, “replied”, “submitted”, “suggested”.
Once again, an Arbitrator is warned against using old and/or
legalistic words such as “attest”, “aver” : he will be deemed to
appreciate their full, legalistic meaning.1
1
If you are interested in this subject, see A Dictionary of Modern Legal Usage by Bryan A Garner.

4. Findings of Fact (& Holdings of Law)

Lawyers differentiate between facts and the law in a number of
ways. Court procedure makes a clear distinction in that higher
levels of appeal do not include a review of the facts –as found by
the court from which that (high level of) appeal is being made– but
concentrates solely on the legal elements in the case. Traditional
terminology confirms the distinction : facts are termed to be ‘found’
while the law is ‘held’.
An Arbitrator must, at least initially, decide both the facts and the
law. He is the final decider as to the facts of the case he is
determining and, though he must also decide as to the law
applicable to those facts, there is usually some form of (generally
limited) appeal from his decision as to the law.
This all presupposes that one can distinguish facts from the law.
This is not always so. Indeed, the difficulty in making such a
separation is such that a judicial decision may range from where a
judge (who doesn’t wish his decision to be appealed, states in his
judgment that everything is a matter of fact, and he so ‘finds’)
through to where the cautious Arbitrator (who ‘finds and holds’
everything) to those decisions where the facts are virtually ignored
and the decision amounts to a learned treatise on the relevant field
of law.
This problem is not capable of resolution but it can be limited. An
Arbitrator should make strenuous efforts to identify and declare as
many facts as he can before he refers to the law applicable to them.
This is not only going to limit the possible grounds for appeal from
his Award but will assist him in making his decision. Unless an
Arbitrator makes a gross error in his procedure, a judge asked to
review his Award will welcome a minimum of points of law in it for
consideration.
For an example of what not to do in your Award, note what Mr

Justice Mance said in Transcatalana -v- INCOBRASA :
‘The present Award is imbalanced between recitation on the
one hand and findings and reasoning on the other. It sets
out at great length messages exchanged between the various
parties (many of them containing assertions of fact raised as
the dispute evolved) as well as the parties’ respective
submissions to the board on numerous issues of fact and law.
But its reasoning and finding on liability are limited to one
issue and are of the utmost brevity.
‘More particularly, the Award extends over some 41 pages,
divided into sections headed “The Contracts”, “The Facts”,
“Appellant Sellers’ Submissions”, “Respondents Buyers’
Submissions” and “Submissions as to the Law and GAFTA
Provisions applicable” and concluding with a section of
findings and the Award. “The Facts” extend over 18 pages
consisting mainly of verbatim recitation of messages passing

between the parties. The sections on submissions comprise 15

pages recounting arguments and submissions on facts. By
contrast the essential findings and reasoning on liability extend
to 12 lines. The equivalent reasons in Cefetra [Cefetra BV -
v- Alfred C Toepfer International GmbH (1994) 1 Lloyd’s Rep 93]
were, it appears, only five lines long.
‘This approach to the preparation of reasoned Awards almost
inevitable leads to uncertainty and argument about what, if
anything, the arbitrators have accepted by way of evidence or
decided on important issues of fact or law. The function of a
reasoned Award is not simply to identify and determine a point
which the arbitrators ultimately considered to be decisive.
It is to enable the parties and the Court (a) to understand the
facts and general reasoning which led the arbitrators to
conclude that this was the decisive point and (b) to understand
the facts, and so consider the position with respect to appeal, on
any other issues which arose before the arbitrators. Where
distinct issues have been argued, the Award should thus
indicate the nature of the findings and reasoning on each,
including those which the arbitrators may not themselves have
thought to be determinative. Further, it serves no useful purpose,
and can be positively unhelpful, to recite at great length
messages exchanged or submissions made containing assertions
of fact or law; the arbitrators’ findings and brief reasoning upon
them are what matters.’
You should avoid as far as possible any mix of decision on fact
('finding') and subsequent application of law to that decision
('holding') as they should be (and generally are) distinct and
sequential :
Decide the facts (clearly based on the evidence
submitted to you, no more and no less) then decide
and apply the relevant law (either 'trite law' which you
know and/or that presented to you by the parties'
representatives). This will give you a decision as to
liability which is followed by the same process applied
to any quantum (or other pleaded remedy), always
remembering at every stage that a claim must be
established sufficiently prima facie before it requires a
defence.
A well-organised Award works through each of the (identified)
issues in order, through all these stages [possibly leaving the
consideration of quantum or other pleaded remedy as a separate
issue, if it is one as can be the case] and so on in a clearly ordered
manner towards your final conclusions, all to the satisfaction of
even the most demanding reader.
Definitions (from Black’s Law Dictionary, 6th edition).
This, American reference is particularly full and balanced.
Note that the references are, of course, to court or jury which
you should ‘translate’ as ‘arbitral tribunal’.

Fact. A thing done ; an action performed or an incident

transpiring ; an event or circumstance ; an actual occurrence ; an
actual happening in time or space or an event mental or physical ;
that which has taken place. City of South Euclid v. Clapacs, 6
Ohio Misc. 101, 213 NE 2d 828, 832. A fact is either a state of
things, that is, an existence, or a motion, that is, an event. The
quality of being actual ; actual existence or occurrence.
Evidence. A circumstance, event or occurrence as it actually takes
or took place ; a physical object or appearance, as it usually exists
or existed. An actual and absolute reality, as distinguished from
mere supposition or opinion. A truth, as distinguished from fiction
or error. “Fact” means reality of events or things the actual
occurrence or existence of which is to be determined by evidence.
Peoples v. Peoples, 10 NC App 402, 179 SE 2d 138, 141.
Facts and law distinguished. “Fact” is very frequently used in
opposition or contrast to “law”. Thus, questions of fact are for the
jury; questions of law for the court. Eg fraud in fact consists in an
actual intention to defraud, carried into effect ; while fraud imputed
by law arises from the person’s conduct in its necessary relations
and consequences. A “fact”, as distinguished from the “law”, may
be taken as that out of which the point of law arises, that which is
asserted to be or not to be, and is to be presumed or proved to be
or not to be for the purpose of applying or refusing to apply a rule
of law. Hinckley v. Town of Barnstable, 311 Mass 600, 42 NE
2d 581, 584. Law is a principle ; fact is an event. Law is
conceived ; fact is actual. Law is a rule of duty ; fact is that which
has been according to or in contravention of the rule.
Fact question. Those issues in a trial or hearing which concern
facts or events and whether such occurred and how they occurred
as contrasted with issues and questions of law. Fact questions are
for the jury, unless the issues are presented at a bench trial, while
law questions are decided by the judge. Fact questions and their
findings are generally not appealable though rulings of law are
subject to appeal.
Law. That which is laid down, ordained, or established. A rule or
method according to which phenomena or actions co-exist or follow
each other. Law, in its generic sense, is a body of rules of action or
conduct prescribed by controlling authority, and having binding
legal force. United States Fidelity and Guaranty Co v.
Guenther, 281 US 34, 50 SCt 165, 74 Led 683. That which
must be obeyed and followed by citizens subject to sanctions or
legal consequences is a law. Law is a solemn expression of the will
of the supreme power of the State. Calif Civil Code, § 22.
With reference to its origin, “law” is derived either from judicial
precedents, from legislation, or from custom.
(from Mustill & Boyd’s Commercial Arbitration)

The following is a list of some of the numerous cases in which the
[English] courts have considered whether a particular conclusion

was a finding of fact or a conclusion of law or a mixed conclusion of

fact and law.
Findings of fact
(a) Proof of foreign law
(b) What is a safe port
(c) Whether a person has used his ‘best endeavours’
(d) Whether a person has acted reasonably
(e) What is ‘reasonable time’
(f) Whether there has been ‘reasonable examination of goods’
(g) Whether a ship is seaworthy
(h)Where there is sufficient light to premises for the purpose of
ordinary user
(i) Whether the property in goods has passed
(j) Whether goods have been accepted
(k) Whether a certificate has been properly completed
(l) Whether goods are of merchantable quality
(m)Whether the buyer has made known a particular purpose for
which goods are required and has relied on the seller’s skill
(n)What is the proper law of a contract
(o) What are the surrounding circumstances of a contract
(p) Whether an intention has been evinced hot to perform a
contract
(q) Whether a transaction formed part of a course of dealing
(r) Whether damage amounts to ‘fair wear and tear’
(s) Whether the bulk of goods corresponds with the sample
(t) The customary meaning of words
(u)Whether a representation was made
Conclusions of law
(a) The construction of a charterparty or a contract
(b) The interpretation of a statute
(c) Whether a buyer is entitled to reject goods
(d) Whether a contract has been varied
(e) Whether a term should be implied in a contract
(f) Whether a term of a contract is a condition or a warranty
(g) Whether a contract has been repudiated
(h)Whether there has been accord and satisfaction

Mixed conclusions of fact and law

(a) WAIVER : the relinquishing, renouncing, disclaiming,
forbearance or abandonment of a claim to a right or benefit ;
it may be express or implied.
(b) ESTOPPEL : a rule of evidence which precludes a
person from asserting or denying a fact, which he has by
words or conduct led others to believe in ; estoppel must be
pleaded to be taken advantage of – it provides a shield, not a
sword, and consequently it cannot create a cause of action.
(c) FRUSTRATION : impossibility of performance of a
contract which excuses the parties from performance ;
frustration can be as a result of a person’s own conduct or
the conduct of other persons for whom he is responsible but
that does not relieve that party from liability under the
contract.
(d) CAUSATION : the relation of cause and effect ; a
respondent in an action in tort is liable only if the chain of
causation between him and the claimant is unbroken.
(e) CUSTOM : a rule of conduct established by long usage
which, if valid, has the force of law ; a valid custom must
have been ‘exercised since time immemorial’, certain,
reasonable and not be contrary to statute.
(f) AGENCY : the performance of a person who is employed
for the purpose of bringing his principal into contractual
relations with third parties.
(g) DAMAGES : the compensation in money for loss
suffered by a person owing to the tort, breach of contract, or
breach of statutory duty by another person.
(h) de minimis non curat lex, ‘the law does not concern
itself with trifles’.
5. Dealing with Legal Submissions

When an Arbitrator is faced with conflicting submissions on legal
matters from the parties, he must rule on these.
It is likely that there will be different legal contentions by the
parties on the ‘major’ issues as, for example, the interpretation of a
contract term ; whether a claim is in tort/delict or whether the
arbitration agreement includes this or not.
An Arbitrator’s reasoning here should be much as for Findings of
Fact except that he may refer to legal references other than those
put to him by the parties BUT ONLY if he asks the parties to submit
their respective positions with regard to these, new references.
[This WON’T be an option in the Award Writing Examination for
which you should be prepared by your researches, following receipt
of the first bundle, as to what legal precedents and statutes you
might need to make your decisions.]

6. Writing out Decisions

Having found the relevant facts and applied the relevant law to
them, an Arbitrator should state, using the Issues listed in
Arbitration Practice & Procedure Topic 5 as example :
The Claimant’s letter of 13 September 2013 was a counter-
offer to the Respondent’s offer of 7 September 2013. This
counter-offer was accepted by the Respondent by facsimile
on 9 November 2013. The contract between the parties was
therefore made on 9 November 2013.
7. Calculations
In the Findings on each of the issues in the arbitration, an Arbitrator
will have decided :
1. What were the relevant duties imposed upon each party ;
i) Whether there has been a breach of any of these duties ;
a. If so, whether the other party thereby suffered any
physical, mental or financial loss ;
 If so, what are the damages to compensate for that
loss.
2. The calculation of these damages should be set out, showing ;
i) What figures are “actual” figures, coming from the terms of
the contract, or from receipts for repairs or for extra
expenses caused &c ;
ii) What figures are assessments made by the Arbitrator, such
as the percentage loss of use, or the compensation for loss
of enjoyment ;
iii) From what date, or dates, the damages run.
When awarding damages, An Arbitrator should state that they are subject
to tax BUT not quantify taxes such as VAT/Sales tax except when it may
apply to his own fees.
VAT jurisdiction lies entirely with ‘the VATman’ who permits each person registered for VAT to make an initial
estimate of charges, subject to revision, but no-one else. An Arbitrator has NO jurisdiction regarding a party’s
VAT.
8. How to Deal with Arguments

An Arbitrator presented with an argument and wishing to analyse it,
should :
1. Ask: What is the conclusion ; What is the proposer trying to show
must be true ?
2. Identify as many steps as possible (premisses, intermediate stages,
conclusion).

3. Try to think through the relationship between the steps. What

follows from what ? Evaluate these relations using the rules given
above.
4. Rewrite the argument in paraphrase, making clear the steps he has
identified and the relationship between them :
a) Consider what else must be true in order for the steps to lead
inevitably to the conclusion. These will be assumptions.
 What are they ?
 Are they true, or at least plausible ?
 Why or why not ?
b) Define and explain key terms used in the argument as clearly
as he can.
 Are there good reasons for agreeing or disagreeing with the
way key terms are defined ?
c) Think of additional examples or analogies to make things still
clearer. Or, perhaps, present counter-examples that raise
questions about how the argument is viewing basic issues.
d) Note any ambiguities or possible different interpretations in his
paraphrase of the argument’s steps. How does it change the
argument if he interprets a key step in one way rather than
another ?
5. If the steps are valid, and the premisses true, then the argument is
sound. Then :
a) Where does this conclusion get him, or why is it important ?
b) What problems does it solve, illuminate – or perhaps it raises
new problems ?
c) Is it perhaps only one step in a larger argument ?
6. If the argument is invalid, or the premisses/assumptions are false,
is there any way it can be rescued ?
a) In general, when he is explicating or studying a submission, he
has a duty of generosity to that submitter.
Explicating (from explicare to unfold) means here ‘describing comprehensively, understanding, explaining and
developing’ a proposition. It is not enough to be sympathetic and generous to the proposer but to have a duty to
be such (‘duty of generosity’). [Nature hates a vacuum so anything is preferable to that and, therefore, that
particular ‘anything’ has a presumption to validity until it may be proved otherwise.]
This point refers to argument ; it does not refer, for example, to a claim which is required to be substantiated to
a sufficient degree before it requires a cogent [that is, forcefully convincing] defence if it is to fail. An arbitrator
should always receive submissions ‘sympathetically’, allowing them to stand as valid unless and until superior
counter-submissions defeat them.
b) Maybe he can save the argument by changing (often

weakening) the conclusion.
 If so, what impact does that have on the submitter’s overall
position ?

Additional Points to Ponder

(These are to assist in understanding what ‘decision-making’ is and isn’t.
They are NOT essential to this Course but are noted here as a warning of
what in yourself to beware.)
Every person, every arbitrator, advocate and witness already has his own
heuristics – his black box ; a hidden set of hard-wired decision-making
rules..
Heuristic (from the Greek εὑρίσκω meaning to find or discover)
refers to experience-based techniques for problem solving, learning,
and discovery. Heuristic methods are used to speed up the process
of finding a satisfactory solution, where an exhaustive search is
impractical. Examples of this method include using a rule of thumb,
an educated guess, an intuitive judgment, or common sense.
Heuristics are strategies using readily accessible, though loosely
applicable, information to control problem solving in people and
machines.
Experiments, based on the realisation that not all errors in judgment arise
from logical lapses and that heuristics can be identified by the systematic
errors they create (known as biases), have been devised to identify the
nature and operation of many different heuristics. For example, questions
similar to the following were posed to test subjects :
Which is more likely : John killed his wife; or, John killed his wife
because she was having an affair ?
Although the test subjects were students in economics and statistics, more
than 20% incorrectly selected the second option even though they
certainly should have known that, logically, a scenario with two variables
can never be more likely than a scenario with only one variable.
This error may be said to be the result of the simulation heuristic, in
which the determination of the likelihood of an event is dependent on how
easily it can be pictured in the mind. Adding the detail that John killed his
wife because she was having an affair makes the statement statistically
less likely but the addition of a cause makes it easier for us to imagine.
There are three basic heuristics and how they could affect the decision-
making processes of finders of fact –jurors or arbitrators : the availability
heuristic (of which the simulation heuristic is a sub-type) ;
representativeness ; and anchoring & adjustment.
The availability heuristic causes the overestimation of information that
is more easily retrieved from memory and is therefore more ‘available’ to
the conscious mind. Availability is affected by a number of factors
including : how recently the memory was formed or refreshed ; how
dramatic or emotional it is ; whether the information was unusual or
surprising; and whether the information describes a causal relationship.
In an arbitration, at least two narratives on a contentious issue compete
for the arbitrator’s attention. The one that better incorporates essential
facts and arguments with elements of drama, surprise and believable
causality will be more available to and trusted by the arbitrator. Also, the

availability heuristic is one of the few that is amenable to correction

through pointing out the logical inconsistencies it creates. Calling an
arbitrator’s attention to the fact that every detail and causal link in an
advocate’s narrative necessarily decreases its likelihood and makes a
simpler, more direct narrative more trustworthy and acceptable.
The representativeness or similarity heuristic arises from man’s innate
reliance on pattern matching and stereotypes. It has two main effects :
the more similar someone is to us, the more likely we are to trust him ;
and we are prone to overestimating the likelihood of something that fits a
representative pattern or stereotype.
Our trust in someone is directly related to how similar he is to us ; people
of all cultures are less likely to trust those they perceive to be different
from them.
The second aspect of representativeness –that people are prone to
overestimating the likelihood of events that match common patterns and
stereotypes– is exemplified by noting that test subjects are far more likely
to overestimate the probability that John from California is a drug user
than John from Ireland. This increases the importance of understanding
the social and cultural backgrounds of jurors (and arbitrators) and
identifying any prevalent patterns, stereotypes and beliefs.
Anchoring and adjustment is a very powerful heuristic that can affect
an arbitrator’s assessment of numerical values such as probabilities,
percentages and monetary verdicts. In making such determinations,
people generally start out with an initial value, the anchor, and adjust that
value up or down. It is easy to create an anchor and only one anchor can
exist at a time.
In a seminal study, test subjects were first asked to write down the last
four digits of their Social Security number and then to bid on an item for
sale. Those subjects with higher Social Security numbers consistently bid
higher amounts because they were adjusting from a higher anchor.
The classic litigation example of anchoring and adjustment occurs during
the jurors' assessment of the value to be assigned to a monetary verdict.
When a plaintiff's counsel values his client's claim at €800,000 –while
defence counsel believes it has a maximum value of €100,000– and in his
closing arguments the plaintiff's counsel suggests an award of €1,250,000
then, as long as the jurors do not reject this figure as completely
unreasonable, it becomes the anchor. As long as it remains the anchor, it
is unlikely that the best defence arguments will cause the jurors to adjust
downward to €100,000; rather, the defence must negate this anchor by
convincing the jurors that it is unreasonable and then argue that the claim
is worth no more than €50,000 to create a new anchor. Arbitrators need
to watch out for this too, though they should be much less susceptible.
Finally ... Intuition

People rely on their intuition in making decisions but they may not realise
how their judgment is thus being distorted. Such biases can be countered
and better decisions made.

There are many ways can people fail to make good judgements, including
being affected by :
 self-interest : even professionals who believe they are making
objective recommendations can be unconsciously influenced by self-
interest ;
 ‘groupthink’ : members of a tribunal are prone to tend to minimise
conflict by converging on a decision that seems to be gaining
support among them ;
 confirmation bias : people don’t generally look hard enough at
possible alternatives but only for evidence to support their main
hypothesis ;
 anchoring bias : where people end up often depends on where
they started. For example, the outcome of a negotiation will more
often than not be influenced by the level of the first offer. People
always think they can disregard such ‘anchors’ but they can’t unless
they are aware of this ;
 halo effect : we tend to see stories as simpler than they are and
assume that what works in one context will work in another ; and
 loss aversion : when people contemplate risky decisions, their
wish to avoid losses is stronger than their desire for gains so they
play safe. [This is a classic ‘fact’ in negotiation theory.]
Since we can’t eliminate such biases from their thinking, arbitrators
need to implement quality control processes to counter them and
improve their decision-making. They need to stand back from the
process of coming up with recommendations and consider them
systematically and the best ways to do this are in the methodological
approaches recommended in this Course using the various checklists
provided as a matter of discipline.
ADDENDA
Donaldson LJ in Bremer Handelsgesellschaft mbH v Westzucker GmbH (No
2) [1981] 2 Lloyd's Rep 130, as approved by the Privy Council in Bay
Hotel and Resort Ltd v Cavalier Construction Co Ltd [2001] UKPC 34 :
"All that is necessary is that the arbitrators should set out what, on
their view of the evidence, did or did not happen and should explain
succinctly why, in the light of what happened, they have reached
their decision and what that decision is. That is all that is meant by
a 'reasoned award'."
And mimicking the procedures and complexities of court litigation "…can
be seen perhaps more as a failing of procedure and approach rather than
as reflecting any essential character of the arbitral process…".
There is no requirement that an arbitrator's reasons should always be of a
judicial standard ; the standard of reasons required will depend upon the
particular circumstances of the case.

Here is a method for deciding on a particular issue that perhaps doesn’t respond well
to those previous noted. It starts with an initial (and only temporary) concept of your
opinion on it :
START
What is your initial
(that is, your commercial common sense) opinion ?
TEST 1a TEST 1b
Weigh this against the evidence from the Weigh this against the evidence from the
Claimant Respondent
TEST 2
Do all the facts
Bear out ?
TEST 3a TEST 3b
How & Why do I decide conflicting evidence ? How & Why do I decide between
witnesses ?
TEST 4
How does the oral evidence compare against the
documents ?
DECISION
With reasons

Further Reading
ALL the materials recommended in the Topics in Arbitration Practice &

Procedure are noted, especially :
UNCITRAL Notes on Organizing Arbitral Proceedings (2016)
Topic Activities
Activity 1- Suggest 4 hours
Attached are a number of papers which form the first part of an Award
Writing exercise which you should complete at the end of the next Topic.
As in the Award Writing examination, these papers are sent to you ‘with a
view to your being able to grasp the nature of the case in advance of the
examination proper and to do any research you feel necessary’.
You generally receive this first ‘bundle’ of papers –STAGE 1– some days
before the examination date and you should make use of those days
leading up to the examination day to consider the content of any recitals
you will include in your award.
In the examination you are permitted to use your recitals prepared in
advance (typed, if you wish) and include them with your submission
without writing them out again.
This is recommended; you will probably do it better in advance
since you are under the pressure of time (4 hours) to complete
your award on the examination day.
Even if you have to change something in your recitals because of further
information in the second bundle (which you are given at the start of the
examination) this will be easier and faster than writing it all out then.
The exercise in having written out your recitals will also have acquainted
you intimately with the case and prepared you for the second bundle.
You should also begin to identify and list the issues in dispute from
this first bundle.
Don’t forget ; this examination is ‘open-book’ - you may refer to any

documents, notes and books you wish into it. (It is recommended that
you have these Course notes with you.)

This Activity requires that you WRITE OUT YOUR RECITALS based solely
on this bundle AND ATTACH ANY OTHER PRE-PREPARED PARTS OF YOUR
FINAL AWARD such as : introductory phrases for the various sections in
your award ; alternatives for awarding costs (both of the reference and of
the award) ; your signature, its witnessing, date, location. Note that you
are writing this award on a particular date which you should take as
23 August 2004.
………………………

27 February 2004
Mr B Olton
Engineer
Albion Street
SOUTHAMPTON
Dear Mr Olton
We are writing to you jointly to request that you accept appointment as sole arbitrator
in a dispute between our clients.
So that you can satisfy yourself that the matter is within your competence, we set out
shortly below the nature of the dispute, and enclose an extract of the contract.
The parties to the dispute are: Culture plc and Soton Aircon plc.
Nature of the Dispute

Culture plc is a company registered in England. It is the owner of The Solent
Institute, the well-known cultural centre on the Isle of Wight. Soton Aircon plc is the
English subsidiary of the long established German company ImmerTrost GmbH
which specialises in the supply and installation of hot air and air conditioning systems
throughout Europe.
In early 2003, Soton Aircon plc agreed to supply and install a hot and cold air system
in the Institute which would maintain a consistent climate between 18º and 24º C.
The contract delivery dates were all important; it was necessary for the system to be
installed and working by 28 June 2003 because the Institute was committed to
holding various events in the course of the summer. In the event, for reasons which
Soton Aircon say are the responsibility of the Institute and the Institute say are the
responsibility of Soton Aircon, the system was not operational until 19 July 2003.
Accordingly the Institute has commenced arbitration seeking to recover its losses. In
summary these are the costs expended in anticipation of holding the Mozart Festival
and the Wight Dolphin Symposium at the Institute.
Soton Aircon counterclaim for the unpaid balance of the sale price and for the costs
of the variations to the system.
Yours sincerely
Parker and Knowles representing Culture plc

and
Adams, Smith & Molony representing Soton Aircon plc

Extract from Contract
This agreement is made the 14th day of January 2003 between Culture plc (the
Purchaser) and Soton Aircon plc (the Installer) whereby:
1. The Installer agrees to supply and install for the Purchaser the following
equipment at the Solent Institute:
(i) Hemivarm Solar Panels to form a new roof to the Institute Building;
and
(ii) Sanasistema climate system (Hemivarm Compatible version).
2. The price agreed is £600,000 to be paid in Sterling to the Installer’s London
bank account in instalments to be agreed.
3. The Installer acknowledges that time is of the essence and agrees that the
installation will be completed and in working order by 28 June 2003.
…
10. The General Conditions of Contract shall be the Standard Conditions of the
European Environmental Control Manufacturers’ Association (EECMA).
11. Any arbitration proceedings pursuant to clause 37 of the General Conditions
shall be conducted in Southampton, England and be in the English language.
12. This Agreement shall be governed by English law.
Extract from EECMA Conditions

37. Any dispute arising out of or in connection with the agreement shall be
referred to the decision of a sole arbitrator who shall be appointed by
President of The Institution of Civil Engineers in London if the parties do not
make an agreed appointment within 14 days of a request by a party for the
commencement of arbitration proceedings.

14 March 2004
To:
Parker and Knowles
and
Adams, Smith & Molony
Dear Sirs
Culture plc v Soton Aircon plc
Now that you have agreed my fees, I accept the appointment as arbitrator. As we
have also agreed, there will be a hearing to deal with procedural matters at my firm's
offices in Southampton on 28 March 2004.
Yours faithfully
B Olton
Arbitrator

IN THE MATTER OF THE ARBITRATION ACT 1996
AND
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Culture plc
Claimant
and
Soton Aircon plc

Respondent
_____________________________________
ORDER NO. 1 (extract)
____________________________________
Having heard submissions from Mr Parker for the Claimant and from Mr Adams for
the Respondent I HEREBY ORDER AND DIRECT as follows:
1. That the Claimant serve its Statement of Claim upon the Respondent on or
before 23 April 2004, sending a copy thereof simultaneously to me;
2. That the Respondent serve its Defence, sending a copy to me, within 6 weeks
of service of the Statement of Claim;
3. That the Defence may include a Statement of Counterclaim if the Respondent
be so advised;
4. That within 4 weeks of service of the Defence, the Claimant shall deliver a
written submission including the documents and other evidence (including
witness statements) upon which the Claimant relies;
5. That within 4 weeks of service of the Claimant's written statement, the
Respondent shall service a written submission in reply including the
documents and other evidence (including witness statements) upon which the
Respondent relies;
6. That an oral hearing will be held in Southampton on 17, 18 and 19 July 2004
when there will be in sequence: a brief opening by the Claimant; a brief
opening by the Respondent; examination of witnesses, if any; a closing
statement by the Respondent; and a closing statement by the Claimant.
…
B Olton
Arbitrator
28 March 2004

AND
BETWEEN:
Culture plc
Claimant
and
Soton Aircon plc
Respondent
_____________________
STATEMENT OF CLAIM
_____________________
1. The names and addresses of the parties are as follows: [et cetera].
2. The Claimant is the owner of the Solent Institute, a purpose-built Institute of
Culture on the Isle of Wight and hereinafter called “the Institute”. It is the
brainchild of Ken Ligen, the world-famous violinist.
3. The Respondent is the English subsidiary of the long established German
company, ImmerTrost GmbH, which specialises in the supply and installation
of hot air and air conditioning systems throughout Europe.
4. In late 2002 the Claimant, following discussions with the Respondent’s
salesman, resolved to have the roof of the Institute completely replaced with
interlocking solar panels connected to an environment controlling system,
hereinafter called the “Climactic System”.
5. Thereafter, the Claimant entered into a contract dated 13th January 2003 with
the Organisations Committee of the Mozart Festival under which the latter
event in 2003 would be held at the Institute in two parts, 21 July 2003 to 2
August 2003, and 15 to 21 September 2003.
6. The Respondent was duly advised of this information. It was further advised
that:
(a) the Claimant expected to make a profit of £230,000 out of the Mozart
Festival; and
(b) it was this profit that would enable the Claimant to fund the new
Climactic System.
7. By an agreement made in writing on 14th January 2003, the Respondent
agreed to supply and install at the Institute:
(i) Hemivarm Solar Panels so as to form a new roof; and

(ii) the Hemivarm Compatible Sanasistema Climate System.

8. By clause 3 thereof it was a condition of the agreement that the system be
installed and satisfactorily tested by 28 June 2003.
9. Thereafter the Claimant entered into a contract dated 23 May 2003 with the
organisers of the Wight Dolphin Symposium under which the latter event
would be held at the Institute between 1 and 6 July 2003.
10. The Respondent was duly advised of this information and was further advised
that the Claimant anticipated making a profit of £115,000 on the venture.
11. The Climactic System was not installed and/or was not working until 19 July
2003.
12. The Respondent is accordingly in breach of the agreement of 14 January
2003.
13. In consequence of the breach of the agreement:
(a) it was not possible to hold the Wight Dolphin Symposium at the
Institute;
(b) it was not possible to hold the first part of the Mozart Festival at the
Institute; and
(c) the organisers of the Mozart Festival refused to hold the second part
of the Festival at the Institute.
14. By reason of these matters:
(a) the Claimant has lost £650,000 expended on preparations for the
Mozart Festival;
(b) the Claimant has lost £55,000 expended on preparations for the Wight
Dolphin Symposium;
(c) the Claimant has lost £230,000 anticipated profit on the Mozart
Festival; and
(d) the Claimant has lost £115,000 anticipated profit on the Wight Dolphin
Symposium.
15. Accordingly the Claimant claims:
(a) the sums set out in paragraph 14 above (which total £1,050,000) as damages
for breach of contract;
(b) interest; and
(c) its costs of the arbitration.
Charles da Costa QC instructed by Parker and Knowles

19 April 2004

AND
BETWEEN:
Culture plc
Claimant
and
Soton Aircon plc
Respondent
_____________________________________________
STATEMENT OF REPLY AND COUNTERCLAIM
_____________________________________________
1. The Respondent confirms the names and addresses of the parties.

2. The Respondent admits the description of the businesses of the parties.
3. The Respondent cannot comment on paragraph 4 of the Statement of Claim.
4. The Respondent cannot comment on the terms of any contract between the
Claimant and the Mozart Festival. It does, however, admit that it knew that
the Festival was to be held at the Solent Institute from 21 July 2003. It does
not accept that it was ever advised of the anticipated profit.
5. The Respondent admits the contract between the parties.
6. The Respondent cannot comment on the terms of any contract between the
Claimant and the Wight Dolphin Symposium. It does, however, admit that it
was informed that the Symposium was to be held at the Solent Institute
shortly after the installation of the Climactic System was due to be completed
but avers this to be irrelevant to its contractual obligations. It does not accept
it was ever advised of the anticipated profit.
7. The Respondent admits the Climactic System was not operating until 19 July
2003. It was not operating because:
(a) in the course of the discussions in 2002 prior to the conclusion of the
contract, the parties agreed that the single-pitch, south-facing roof of
the Institute Building would be panelled with the longer sides parallel
to the ground;
(b) after the order was placed and during manufacture of the system, the
Claimant sought to change the arrangement of the panels so that their
shorter sides were parallel to the ground;

(c) the Respondent’s operatives commenced site works on 14 June 2003

which permitted adequate time to complete the installation within the
contract period;
(d) the work was completed on 26 June 2003;
(e) the installation failed to maintain the agreed temperature;
(f) the problem was due to westerly winds penetrating the seals between
the shorter sides of the Hemivarm panels, thus reducing their effect;
and
(g) the problem would not have occurred had the panels been installed to
the original alignment.
8. The Respondent will, therefore, say that the responsibility for the late
completion of the works lies with the Claimant.
9. The Claimant is, accordingly, not entitled to the sums claimed in the
arbitration (which are, in any event, hereby put in issue).
10. Further, the Respondent had itself to incur cost in correcting the system and
claims reasonable sums in respect of such works as follows:
(a) £29,000 being the costs of taking down the Hemivarm panels,
adapting them and re-fitting them; and
(b) £6,500 being the cost of providing and fixing adaptor plates to the
Hemivarm panels.
11. Further still the Respondent claims the outstanding balance of the purchase
price, £175,000.
12. The Respondent also claims interest and its costs in the Reference to
arbitration.
Darina Sweetman
Barrister-at-law
Instructed by Adams, Smith & Molony
25 May 2004

Arbitration Award Writing Topic 2 : Drafting a Domestic Award
Topic 2 : Drafting a Domestic Award
Topic Preview
This Topic launches ‘How to Write an Award’, including how to
make a decision, with reference to a domestic Award and
sections on :
– Reasoning in an Award
– Deciding in an Award
– Checklists and example Headings
– A Diagram showing how to analyse a claim
THE ACTIVITY CONTINUES THE EXAMINATION-TYPE SITUATION
IN TOPIC 1 AND REQUIRES STUDENTS TO WRITE THE MAIN
PART OF AN AWARD ON IT.
STUDENTS COMPLETING THIS ACTIVITY WILL BE SENT A
‘MODEL ANSWER’ FOR COMPARISON & GENERAL
GUIDANCE.
Topic Content
1. Reasons in an Award
Submissions
Evidence & Agreed facts
Issues in dispute
Findings of fact & Holding of opinions on law
Decisions
S.52(4) (of the English Act) requires that an Award ‘shall contain the
reasons for the Award unless it is an agreed Award or the parties have
agreed to dispense with reasons’. Following the 1979 Act, when reasons
became the new norm rather than the unreasoned (“non-speaking”)
Awards that avoided as far as possible the rigours of the ‘error on the face
of an Award’, there was much discussion as to what form reasons should
or should not take. A comprehensive paper by Lord Bingham, “Differences
between a Judgment and a Reasoned Award” provided a useful guide :
‘It is not incumbent on an arbitrator in stating reasons (and again,
probably not desirable) to give an assessment of the witnesses and a
detailed statement of his grounds for preferring the evidence of A to B or
the expert evidence of C to that of D. These are not matters subject to the

review of the Court, and so reasons of this kind are not called for under
the Act. The arbitrator may say as much or as little as he thinks necessary
for the enlightenment of the parties. To that end it is sometimes helpful to
state that the evidence of a particular witness or witnesses was not
accepted. What documents the arbitrators choose to annexe for the
purpose (of giving reasons under the 1979 Act) is a matter for them.’
‘An arbitrator is not called upon to make any detailed analysis of the legal
principles canvassed before him or to review the legal authorities cited. It
is enough if he briefly summarises the arguments put to him and
expresses his legal conclusion in a way that makes it intelligible.’
‘Referring to Universal Petroleum v Handel Transportgesellschaft [1987] 2
All ER 737, an arbitrator’s primary findings of fact are final and intended to
be immune from review by the Courts in the absence of misconduct, such
as breaches of natural justice.’
It is obvious that an Arbitrator must find the facts in his Award. For confirmation and guidance, note that in
Heffer and Another -v- Green (a firm) [The Times Law Report 28 December 1998] the Court of Appeal
ordered a new trial, setting aside a High Court judgment that omitted 'a coherent narrative of events based on
factual findings', did not clearly identify and list the issues in the case, and did not test the oral evidence against
contemporaneous documents.
This section of an Award should note briefly the evidence given and the
submissions made ; these last may be as short as listing the parties’
representatives, the witnesses of fact and opinion they called, and that
there were opening and closing statements.
Next, if such are note-worthy, any agreed facts should be listed.
Then, the issues in dispute should be noted, setting the scene for the
consideration of each in turn.
This consideration is of the relevant evidence and submissions, again
briefly noted, leading to findings of fact followed by any holdings of law
applicable to those facts, leading to the decision.
2. Deciding in an Award
The previous Topic discussed in considerable detail how to approach the
task of making a decision. Much of that may be perplexing so a more
practical, every-day approach is introduced here in this all-important
context of making an Award.
Well-argued ways of making a decision tend to be methods that
concentrate on small elements, so that the big picture remains outside the
immediate consideration while the minutiae are arranged to arrive,
eventually, at an incontrovertible overall decision. They are a type of
mental ‘pointilism’.
Edward de Bono has written many books on learning and how the mind
works ; his methods have become classics in his own lifetime. One such is
what he calls ‘flowscape’ where mini-elements may be found to be linked
in a meaningful way, often providing insights into our unique individual
understanding of a particular matter. This sometimes leads to deeper,
more general insights.
The technique is simple :

 define the subject matter;
 list up to 15 to 18 words or phrases that you think are closely

relevant to it;
 put a ‘letter’ in front of each word or phrase, starting with ‘A’;
 look at each word or phrase and choose which other word or phrase
in your list follows it most closely and note the latter’s ‘letter’ after
the former word or phrase;
 once each word or phrase has a pre- and post- ‘letter’, arrange them
in sequence with arrows leading from the pre-’letters’ to their
respective post-’letters’.
The resultant ‘flowscape’ will show you how your mind has considered the
subject matter, usually with some interesting information about yourself !
WHAT IS IN ISSUE – WHAT ARE THE KEY POINTS IN DISPUTE ?

Edward de Bono’s ‘flowscape’ can be useful in helping to understand how
you see a dispute, by replacing ‘subject matter’ by ‘dispute’ and making
your list from the parties’ submissions.
So is the simple method suggested here for sifting evidence :
Read the documents (and/or your notes of evidence)
‘concentratedly’, that is :
(i) Place a blank sheet of paper to cover the first page. Slide it
down to uncover the first line. Read this first line and
understand all you reasonably can from it. Do the same with
the next line.
(ii) At the end of the first sentence, note (in the margins or in a
separate notebook) any points from that sentence you think
are important.
(iii) Continue to the end of the first paragraph and make any
further notes you think are important.
(iv) Where there is a reference to a statute or a case look it up
and read it in a similar manner after the sentence in which it
is noted.
(v) Continue until your concentration lapses, then stop and do
something else before starting again (and afresh) where you
left off.
(vi) Your concentrated reading should take as few and continuous
sessions as possible.
LEAVE THE DOCUMENTS IF YOU CAN FOR A DAY OR MORE

Read them for a second time, section by section, and correct or add
to the detailed notes you made on the second reading.

Read them for a third and final time right through, if you can, as a
story, if necessary re-arranged to allow it to flow.
Here is another approach specific to Award writing. It has been evolved

over many years and many have found it useful. It incorporates some of
the points noted above and has here been adapted to the taking of the
Award Writing examination, when you receive the second bundle of
documents in the case – STAGE 2.
A TECHNIQUE FOR MAKING DECISIONS IN ARBITRATION

AWARDS
1. This is not an exercise in remembered knowledge ; it is an exercise
on the practical application of skills, especially of being able to
organise the material, to analyse it and, as a result, to write a
coherent Award.
2. This doesn’t mean that all the knowledge acquired in learning about
legal principles, contract, tort/civil delict and evidence and the law,
practice and procedure in arbitration is irrelevant. It means that all
you’ve acquired must be directly focussed on a practical task, the
issues raised in this particular case.
3. You already know what those issues are, at least to a large extent, as
you have already been given a first bundle of documents in this
situation. Now you have to focus on just those issues.
4. From the documents in the first bundle, you have got to try and
identify as far as possible what are likely to be the factual issues
when you get to the Hearing : What is in dispute ? What is agreed ?
Which paragraph in a party’s submission is admitted and which
denied ? What defence is being made or is likely to be made ? and so
on.
5. More importantly, you must analyse and, where necessary, research
the legal issues you can identify, checking any statutory provisions,
cases and trade or professional customs that may be involved.
6. (You may, perhaps, also need to research some of the technicalities
of the particular case).
7. What are the legal bases on which each claim relies ? What are the
legal stepping stones that must be proved for each claim to be
successful ?
8. If it is a matter of contract, for example, you need to rehearse the
contract formation, its terms, what breach, causation, damages –
each is a stepping stone that must be proved.
9. Who has the burden of proof ? – Who has to prove each of these
legal stepping stones ?
10. What about defences ? What defences are raised ? If these are
meritorial defences, what factual detail is required to establish them?
11. What about the ‘recitals’ ? This is another exercise you can look at,
even write out in advance, from the first bundle. Start writing your

Award on your appointment, by working against your checklist which

will help you ensure that all the necessary elements are in place in
each stage (but beware of prejudicing your reception of evidence and
submissions later, in the second bundle). You have already most if
not all the information needed to write the recitals to your Award.
Remember : the purpose of recitals is to explain in as uncontroversial
a way as possible how you ended up to be writing this Award ; what
were the steps that began with your ignorance of the whole matter
yet led to your writing this Award ?
12. So, you look at this first bundle and work from the agreement to
arbitrate, when it was formed, was it in writing, how you were
approached, when and that you accepted appointment with what
conditions – all quite uncontroversial.
13. Finally, on this preparation stage, you should consider how you are
going to structure your Award. Will it have a paragraph listing the
common ground between the parties or is virtually everything in
dispute ? Will it distil the issues from the claims and their defences
(which is recommended for virtually all cases) or will it deal directly
with these claims ? You should be able to decide substantially on this
structure from the first bundle.
14. You should include in this structure those options likely to occur with
regard to interest, costs (both of the tribunal and of the parties),
your summary – that is, the dispositive or operative part of your
Award, any introductory phrases you think would assist in identifying
the several sections in the Award, any ‘standard’ provisions for your
signing it, having it witnessed, dated and located, and if you are in
any doubt about these, look them up in the precedents you will find
in the references already noted (though it is emphasised that you
avoid the more legalistically-worded examples if you are not a
lawyer; they could all too easily mean something you don’t intend
them to mean ... in fact, it could not be recommended too strongly
that you give all these little points a lot of consideration and decide
what form would best suit your style, with which you will be
comfortable). There are some suggestions in the following
checklists.
15. When you come to the evidence, you should ‘arrange’ it. For
example : write out on separate sheets of paper each head of claim
or issue you have to decide. Draw a line down the middle of the
sheet below this and head each side with ‘Claimant/Respondent’ or
(as you may prefer) the names of the parties (though you should
identify which party is making the particular claim so you don’t forget
which has the burden of proof to discharge).
16. Then, with all these sheets prepared in this manner, allocate the
evidence appropriately, making note of who gave it &c. Once you
have allocated all the evidence (including, if it arises, that some is
NOT relevant to any issue), look at each sheet and decide on the
facts arising from the evidence. This will be followed by the stages
already noted, leading to your decision on each issue/claim.

17. One further point might help both in your preparation and in the final
writing of your Award. Use the ‘minimalist’ technique described
above : start going through the documents (and your notes of the
hearing) by reading each one line by line and as you do so note any
reasonable deductions you can make even at that stage of reading ;
you will be surprised at how much you can fairly and reasonably
deduce like, who wrote the letter, to whom, when, on behalf of
whom, and what was acknowledged, admitted, alleged or asked for
or denied.
18. When you have gone through the whole bundle, go back and correct
any misdeductions in the light of the whole and then read it all
through as a story. By then, you should have a good idea of both
‘the forest and its individual trees’ and this will give you confidence to
deal with it all competently and efficiently.
19. These points refer equally to any stage. In advance of a first
procedural (‘preliminary’) meeting (that is, if you have been provided
with documentation beforehand) ; at any interlocutory stage,
especially those relating to an interim Award ; and, of course, to the
final Award, Awards on taxation of costs, applications for Stated
Case, &c.
20. Finally, don’t be afraid of your ‘gut feeling’, that which you have at
the end of an arbitration (or a stage if it goes to an interim Award)
before you begin to consider and write your Award. It is one part of
your decision-making process, the other being the painstaking
deliberation through arranging the evidence and filtering from your
findings of fact to your decision(s). If you find these two parts
conflict, it is likely that the latter will clearly prevail ; at any rate, you
have but ‘two alternatives’ from which to choose.
To reach a legally ‘correct’ decision, the following analysis diagram can be

a useful tool. It looks specifically at the requirements for dealing with a
claim, the ‘logic train’ in an Award.

3. Analysis of a Claim
CLAIM
To reach a legally
'correct' decision
the following
Analysis can be a Are claim
Re-submit
details
useful tool: clear?
claim
yes
Is claim no
arbitrable?
yes
Have I the no
jurisdiction?
yes
Is there a
yes no
Contract?
Is claim no no
Is there a
in the
Legal Duty?
Contract?
yes yes
no
Was there no
Was there
a failure of
a Breach?
this Duty?
yes yes
NOTES:
Did no
Analysis is the logical examination and damage
evaluation of the facts and the evidence follow?
to determine whether liability exists and,
if so, what is the proper remedy.
The basic questions are: yes
- What is being claimed?
- Why is it being claimed?
- What is the defence? no
As a natural
- Has the claimant proved his case? consequence?
Does the claim arise in contract or out
of a legal duty/in tort?
If the claim is in contract (tort) has there
been a breach (tortious act or
yes
omission)?
- If so: has damage occurred
because of that breach (act or
omission)? CLAIM CLAIM
- If so: was the damage a natural Succeeds Fails
consequence?

4. Award Writing Checklists

Having sorted through the submissions and evidence, decided what the
facts of each issue are and applied the appropriate legal principle to those
facts to arrive at your decisions, you then apply those decisions to each
head of claim.
The remaining task is to put all this in context and in order so that any
reader of your Award will have a complete and clear story of the dispute,
how it has been decided and why.
Here are three checklists to remind you of the detail that is required,
followed by some suggested ways of how to present it all to satisfy all the
substantive and procedural points, noted previously, as intelligibly as
possible.
DOES THE AWARD HAVE :
 A heading with the relevant Arbitration statute, seat, rules and

definitions/designations of the parties ?
 An appropriate title ?
 Recitals ?
 A clause covering hearing the parties (that is, if you have heard
them) ?
 The agreed facts ?
 The issues in contention, in order (of importance; logical) ?
 Findings of fact, holdings of law and reasons as each issue is
decided ?
 A decision on each issue ?
 A decision on each element of interest in the Award, fully detailed
and calculated ?
 A decision on interest on the Award (if it is not performed within the
time limit you set) ?
 A summary of decisions and Award notification clause ?
 Clear calculations for special damages ?
 A direction as to who is to pay whom and within what time ?
 A decision on the parties’ costs ?
 A decision on the costs of the tribunal ?
 An offset clause ?
 Your name, signature, where you signed the Award and the date you
signed it ?
 (A witness’ signature and details ?)
 (Provision for notarisation &c, as applicable ?)

DO THE RECITALS :
 Identify the contract, what it was for, its date and the parties to it ?
 Identify the arbitration clause or agreement ?
 (Identify the substantive and procedural laws ?)
 Show that a dispute (or difference, &c) arose and was validly referred
to arbitration ?
 Detail your appointment and acceptance ?
 State the seat of the arbitration (s.3) ?
 Detail the proceedings, including interlocutory matters ?
FINAL CHECKLIST :
 Have you used the correct names/references to the parties

throughout ?
 Have you considered all the evidence ?
 Have you excluded any evidence not presented to you ?
 Are you sure you have not used your own evidence ?
 Are there any unexplained calculations ?
 Have you checked all your calculations and the basic rates in them ?
 Have you decided on all the matters put to you ?
 Are you sure you haven’t decided on a matter not put to you ?
 Do the interest decisions in your Award run from their respective
dates of inception to date of payment/Award ?
 Are all the paragraphs sequentially numbered ?
 Have you decided on costs of the parties and of the Award ?
 Have you included for any interlocutory decisions on costs ?
 Is your story understandable and complete ?
5. Typical Headings
It is fairly standard to head your Award with :
(reference to the relevant procedural law; maybe to Rules also if applying)
AND
BETWEEN

(the name and registered address of the party initiating the

arbitration)
Claimant
and
(the name and registered address of the party or parties against
whom the arbitration was initiated)
Respondent(s)
(type, for example, ‘FINAL’) AWARD (or dealing with specific
matters)
the point being that the Act (and Rules) apply ; the arbitration agreement
is in writing and the arbitration is in England & Wales/N Ireland.
You then may introduce your recitals which, like the rest of your Award,
should be conveniently split into paragraphs, numbered sequentially (for
ease of cross-referencing) and not too long, if possible.
[Lawyers tend to introduce this section (or sometimes each recital
paragraph) with the word :
WHEREAS
though this isn’t necessary.]
Once you have gone through the recitals, probably noting as the final item
that there was a hearing on such-and-such a day when so-and-so
represented this party who called which witnesses &c, it is useful to
identify that you are now proceeding to consider the evidence and a
phrase IN CAPITALS stands out for the convenience of your reader :
41. HAVING TAKEN CAREFUL CONSIDERATION OF THE
(submissions/pleadings &c) OF THE PARTIES, THE EVIDENCE
ADDUCED, BOTH ORAL AND DOCUMENTARY, AND THE ADDRESSES
AND CLOSING SUBMISSIONS OF THE ADVOCATES FOR THE
PARTIES
42. I NOW FIND AS FOLLOWS :
which you should number and adapt as appropriate to your Award.
Next it is useful to identify the ‘operative’ part of your Award, where you
actually ‘award’ :
73. ACCORDINGLY I AWARD AND DIRECT (if final add : IN FULL AND
FINAL SETTLEMENT OF ALL ISSUES IN DISPUTE BEFORE ME) THAT
74. (the losing party’s name OR) The Claimant/Respondent shall pay
(the winning party’s name OR) to the Respondent/Claimant the sum
of (your decided figure, stating whether with or exclusive of VAT)
(on or before [a specific date] OR) within (seven/fourteen/&c) days
from the date of this Award.

75. Together with simple interest at (your decided rate) (OR

compounded annually/monthly/&c) in the sum of (your decided
figure, which should state whether with or without VAT) being on
the principal sum of (identify what you have already awarded) from
(the start date) to (end date, not beyond the date of your Award).
76. (the winning party’s name OR) The Claimant/Respondent shall pay
(the losing party’s name OR) to the Respondent/Claimant the sum
of (your decided figure, stating whether with or exclusive of VAT)
(on or before [a specific date] OR) within (seven/fourteen/&c) days
from the date of this Award.
77. Together with simple interest at (your decided rate) (OR
compounded annually/quarterly/monthly &c) in the sum of (your
decided figure, which should state whether with or without VAT)
being on the principal sum of (identify what you have already
awarded) from (the start date) to (end date, not beyond the date of
your Award).
and so on, usually for each separate head of claim which, if appropriate,
you might summarise by lumping them all together, saying so. Only
summarise where any counterclaim is merely a set-off ; a proper
counterclaim should always be considered separately and the Award
should show this.
Generally, in an international arbitration where parties are from different

jurisdictions, it won’t be possible to make actual provision for applicable
taxes (VAT, GST &c &c) so Don’t nett even single claims decided as
one for the Claimant and one for the Respondent as these will
each need to be assessed further regarding such applicable taxes.
You have now disposed of the ‘substantive issues’, the actual dispute
between the parties, but there is more to be done. Costs are next and, if
they do not ‘follow the event’ you must add your reasons why. You have
both the costs of the parties :
(the winning party’s name OR) the Respondent’s/Claimant’s costs
(or a percentage, if applicable) in this arbitration (if not a single
costs order, add: with respect to items decided in paragraphs 74
and 76 above) to be determined (add : by me, if applicable) if not
agreed.
(the winning party’s name OR) the Respondent’s/Claimant’s costs
(or a percentage, if applicable) in this arbitration (if not a single
costs order, add : with respect to (for example) the interlocutory
hearing on jurisdiction) to be determined (add: by me, if applicable)
if not agreed.
&c

and the costs of the tribunal :

87. (the overall losing party’s name OR) The Claimant/Respondent
shall pay (if applicable add: [X] %) and (the overall winning party’s
name OR) the Respondent/Claimant shall pay (if applicable add:
[100-X] % of the costs of this my Award which I tax (OR settle) in
the sum of [Z] inclusive/exclusive of VAT (if percentages add :
which percentages are figure and figure respectively)
You should also include a paragraph covering any reimbursement of your
costs (the costs of the tribunal) :
88. In the event that an excess of such costs has already been paid by
a party that excess shall be reimbursed to that party by the other party
(on or before [a specific date] OR) within (seven/fourteen/&c) days from
the date of this Award.
and –the final paragraph– you cover the possibility that the overall loser
may not pay within your stated time limit as in paragraphs 74 to 77,
probably in the same terms as you awarded interest in your Award :
89. In the event that a paying party fails to make payment in full as
awarded within the time(s) stipulated, that party shall pay the
outstanding amount(s) together with simple interest at (your
decided rate) (OR compounded annually/quarterly/monthly/&c)
from the date before or on which it should have been paid until the
date it is paid.
You may need to include paragraphs covering any re-imbursement of your
costs (the costs of the tribunal) and, unless this is clearly not required,
you should do this in the Award Writing examination.
As this is quite probably the ONLY section of your Award that
a Judge will note –and copy into his judgment– when your
Award may be presented to him for enforcement, this
‘operative’ section needs to be complete in itself –‘stand-
alone’– and without references to elsewhere in your Award.
At last, the end is in sight !

You complete your Award by stating its seat and signing it above your
typed name as Arbitrator, preferably with a witness to your signature, the
date and location, for example :
A Gate 17 March 2014
Arbitrator
12 Bloomsbury Square, London WC1A 2LP
Whose signature has been witnessed this day by :
................................................
(Name).................................................
(address) ..............................................…

Topic Activities
Activity 1 – Suggest maximum 4 hours actual time (as this time is that
available in the set examination period)
DO NOT LOOK AT THE FOLLOWING PAGES UNTIL AFTER YOU HAVE

COMPLETED THE ACTIVITY IN TOPIC 1 – THESE ACTIVITIES ARE
DELIBERATELY ARRANGED SO THAT YOU WILL GAIN MAXIMUM
BENEFIT FROM DOING THEM AS SET AND IN ORDER which is the
same as in the Award Writing Examination.
If you do look at the following pages before doing the Topic 1 Activity, you
will lose all the advantages you would gain from having done it on its own.
Following are the remainder of the papers which form part of the Award
Writing exercise which you started in Topic 1 and should complete in this
Activity.
You are now ‘in the examination room’ and you are required within a 4-
hour period to write a final reasoned Award on this problem.
Don’t forget ; this examination is ‘open-book’ – you may use any

documents, notes and books you wish BUT remember that your Award will
be checked in every respect for any plagiarism. You should have the
recitals and pre-prepared phrases &c ready for inclusion in your
answer.
This Activity requires you initially to identify the issues in dispute,
allocate the evidence to them and make your findings of fact on
them from the evidence.
You should do this in the examination as preparation for writing out

your award. This exercise may (in the actual examination if you
wish) be included with your award but it is likely that the examiner
will take much more notice of your Award itself. After all, that is
what you are meant to produce in this examination.
With this task complete, you then have to write out your Award, the final
(and, quite possibly, the only) visible result of the Activities of this and the
previous Topic.
STUDENTS ARE REMINDED THAT, ON COMPLETING THIS ACTIVITY

THEY WILL BE SENT A ‘MODEL ANSWER’ FOR COMPARISON &
GENERAL GUIDANCE.
……………………

Claimant’s Written Submission &c
Extract from submission

1. A breach of conditions entitles the Claimant to damages.
2. There was such a breach.
3. The Respondent is liable for damage which flows naturally.
4. It was ‘natural’ that the Institute would have been holding conferences and
similar events and would have expected to make a profit on them.
5. Therefore it is irrelevant that one of the two conferences was organised after
the agreement between the Claimant and the Respondent.
6. Even if the loss was not ‘natural’ the Respondent was specifically told of both
conferences and even intimated there was no difficulty in meeting the
completion date when informed in May of the proposal to hold the Wight
Dolphin Symposium (WDS) at the Institute.
7. Therefore the Respondent is liable for losses incurred on both contracts.
8. The Respondent is also liable for expenditure on the Mozart Festival and on
the WDS.
9. The law is straightforward.
10. The Defence takes the point that the Claimant itself required the panels to be
put up differently from the way originally envisaged.
11. But the Respondent itself agreed to this proposal. The Respondent has the
technical expertise. It should have not agreed if it was not possible. The
Defence on this basis is bad in law and fact.
12. The Respondent counterclaims the balance of the price and “remedial costs”.
It is clearly not entitled to the latter. It caused those costs itself.
13. It is not entitled, either, to the balance of the price. The Claimant made it
clear that it was dependent (for funding) on obtaining the profit it anticipated.
It did not obtain that profit. This was an implied term of the agreement. The
Respondent is in breach of the implied term and cannot make this claim.
14. The Claimant proposes to call Ken Ligen to give evidence and submits his
statement herewith.
Statement of Ken Ligen

1. I am Ken Ligen, the world-famous violinist.
2. In late 2002 I decided it was time to modernise the heating and ventilation
system at the Solent Institute.
3. I called in a number of specialists.
4. Amongst others I contacted Soton Aircon plc.
5. They sent a salesman from Aberdeen. Quite why is a mystery.
6. He told me that he thought the best answer was to replace the roof with
interlocking solar panels connected to an environment controlling system. He

told me such a system would easily maintain a year-round background

temperature between 18º and 24º C.
7. I was convinced.
8. Before he left we discussed the arrangement of the panels. He said it would
be best if they were installed so that the roof was panelled with the longer
sides parallel to the ground.
9. This seemed satisfactory at the time.
10. He left, telling me he would in due course send a quotation and a draft
contract.
11. A few days later the quotation arrived. It stated a price of £600,000.
12. I did not accept the offer at this time but responded by saying that I was
seeking funds.
13. Copies of the quotation and my response thereto are attached (exhibits 1 &
2).
14. Shortly after this I bid for the Mozart Festival 2003 to be held at the Institute.
It was to be held as usual in two parts, from 21 July to 2 August and from 15
to 21 September 2003. This prestigious event occurs every ten years and it
was a great honour that the Institute was asked to tender. Despite its roots in
history, the Mozart Festival has always made full use of modern amenities. It
has always been run with a strong emphasis on efficiency and it was my
promise to provide both the amenities and to ensure efficiency that won me
the chance to tender.
15. My calculation of the price I quoted to the Mozart Festival is exhibited hereto
(exhibit 3). The quotation was accepted in this sum.
16. On 13 January 2003 I signed the contract with the Mozart Festival in
Salzburg. I travelled back to England the same day and went to the offices of
Soton Aircon plc in Southampton. There I told Mr Woods that we expected to
make £230,000 pofit on the Mozart Festival contract and that it was this
money that enabled us to proceed. We discussed the dates and agreed that
the works must be completed by 28 June 2003.
17. In May I also entered into a contract with WDS, an event which was to have
been held at the Institute between 1 and 6 July 2003.
18. I calculated my quotation in much the same way. The anticipated profit was
£115,000.
19. In the course of the works I decided the panels would look better arranged
with their shorter sides parallel to the ground. I mentioned this to Mr Woods
on the ‘phone. He came to look. He said that the dimensions of the roof
allowed the panels to be arranged in either direction. He made no further
investigation or comment.
20. When the system was assembled it would not maintain the temperature.
Repairs were carried out which involved restoring the original configuration of
the panels.
21. The system did not function correctly until 19 July 2003.
22. This was too late for the WDS. I had spent £55,000 on preparations.
23. The Mozart Festival wrote telling me that they would not hold the second part
of the event at the Institute. Their letter is exhibited hereto (exhibit 4).

24. In all I also lost the £230,000 expected profit on the Mozart Festival and the
£115,000 expected on the WDS.
25. I conclude by saying that the whole affair is an absolute disgrace and shows
that you cannot get good workmen anywhere these days.
26. As an afterthought I have been asked to comment on the interest paid by the
Institute on its overdraft. This is normally 3 percent over the London Bank
base rate. I can confirm that the Institute borrows money to fund events
whenever necessary.
Expert evidence
It has been agreed between the parties that to place the panels with their
shorter side parallel to the ground would not have worked. The site was
exposed to strong westerly winds which (inevitably) would penetrate the seals
between the shorter sides of the panels. This would not have happened if the
initial configurations had been adopted.
Exhibit 1
SOTON AIRCON PLC
QUOTATION
13 November 2002
To Supply and Install at the Solent Institute
(i) Hemivarm Solar Panels to form a new roof as required;
(ii) Sanasistema Climactic System (Hemivarm Compatible).
Price: £600,000
Delivery: Approx. 5 months from order.
Payment: 7 days in Sterling to London Bank.
Terms: To be agreed, based on EECMA.
Acceptance: Within 3 months at the above price. Thereafter price will increase.
Exhibit 2
The Solent Institute
17 November 2002
To: Soton Aircon plc
Dear Sirs
Re: Climactic System
I acknowledge receipt of your quotation with thanks.
I now require to obtain the money to proceed with the project. I am bidding for the
Mozart Festival 2003 and I hope to write to you with good news shortly.
Yours faithfully
PS I very much enjoyed the roast venison at that splendid lunch in Ryde.

Exhibit 3
Calculation of quotation
First part Second part
Food 210,000 170,000
Transport 135,000 135,000
Extra staff 100,000 110,000
Minor building works 240,000 85,000
Electricity 25,000 25,000
_______ _______
Sub-total 710,000 525,000
Profit 150,000 80,000
_______ _______
860,000 605,000
Total bid £1,465,000
Exhibit 4
The Mozart Festival
Salzburg
22 July 2003
To: Solent Institute
Dear Mr Ligen
You will realise by now the fury at your failure to provide the “efficient and
comfortable” amenities you promised for the 2003 Festival. In fact all you provided
was a building site.
We will not come with our Festival to the Institute for its second part.
Fortunately we have paid you very little and we do not intend to pay you a pfennig
more.
Yours sincerely
(end of Claimant’s Written Submission &c)
Respondent’s Written Submission &c
Extract from Submission

1. There was no breach of the contract.
2. The lateness arose in consequence of acts of the Claimant.
3. If there was a breach the Respondent could not be liable for anything other
than the consequences known to it at the time it entered into the contract.

4. Therefore there could be no claim in respect of the WDS.

5. It was also impossible to predict the exact profit that would have been made.
£230,000 was not the right figure.
6. In any event it is not accepted that the Respondent ever knew of the actual
figures.
7. If there was a fault, it lies with the Claimant itself. The Respondent made a
reasonable (and correct) assessment of the way the panels needed to be
erected. The Claimant interfered with that. The Claimant gave its own
instructions and (in effect) took over the design aspects. The Respondent
cannot be liable.
8. Indeed, the Respondent is obviously entitled to be paid the reasonable value
of the alterations ultimately made.
9. The Respondent proposed to call Henry Woods to give evidence and submits
his evidence herewith.
Statement of Henry Woods

1. In late 2002 I visited the Solent Institute at the request of Ken Ligen. I
recommended to Mr Ligen that if he wanted a new environmental installation,
the combination of Hemivarm Solar Panels and the Sanasistema Climactic
System would be best. I remain of that view.
2. I took careful measurements of the roof area and took copies of the “as-built”
plans of the Institute. I did wind tests and established that the panels should
be installed with the longer sides parallel to the ground. This would give the
seals the best protection.
3. It was on this basis I prepared the quotation.
4. I received the letter of 17 November 2002 (exhibit 2 to the Claimant’s
Submission).
5. I did not hear from him again until 13 January 2003 when he turned up
unannounced at my office. I know that he told me about a big contract. I am
quite sure he never discussed figures. I think I realised that it was having the
big contract that gave him the confidence to proceed with the Respondent but
I am equally sure it was never spelt out to me that he would not have the
money to pay unless the Mozart Festival proceeded. Indeed, I would not
have gone ahead if I thought that was the basis; or at least I would have
sought external guarantees.
6. During manufacture (quite what Mr Ligen means at paragraph 19 of his
evidence is not clear) Mr Ligen telephoned me and asked if I could come to
the Institute with a view to installing a similar system in the recently built Ryde
Theatre. I went over. While I was there, he told me he wanted the panels on
the Institute building arranged so that their shorter sides were parallel to the
ground. I regarded this as an instruction. I checked the dimensions and
worked out that they would fit without altering the manufacturing details. So I
implemented the change.
7. I accept that the system did not function correctly until 19 July 2003.
8. It cost us
(a) £23,000 to take down the Hemivarm panels and refit them; and

(b) £5,200 to make and fix adaptor plates.

9. The costs in the counterclaim include for profit.
10. The Claimant has not paid the final instalment of the price.
11. The remark at paragraph 25 of Mr Ligen’s proof deserves to be treated with
contempt.
(End of Respondent’s Written Submision &c)
THE HEARING
(extract from Arbitrator’s notes, 17-19 July 2004)
Claimant’s Opening (17 July 2004 at 10h00)

as submission
Respondent’s Opening
as submission
Evidence of Ken Ligen

(Gave evidence in line with his statement.)
(questioned by Ms Sweetman)
Had gone to Respondent’s offices unannounced. Was very excited and forgot
to ‘phone first. Was sure he had told Mr Woods that there was a £230,000
profit in the Mozart Festival. It was ‘blindingly obvious’ that it was having that
contract that enabled the overall project to proceed.
[Challenged on the calculations of profit]
Couldn’t provide figures for what the profit would actually have been. The
quotations were obviously put together on the basis of estimates. The profit
was that which he needed to proceed with the new roof and climactic system,
that is £230,000. Hence the way the quotation was prepared.
The balance of the price (£370,000) was going to come from selling
investments. In fact they yielded £427,000.
There was no documentation available in support of the actual costs of either
the Mozart Festival or WDS. The witness had not been asked to produce
such evidence.
Nor could he produce any documentary evidence in support of sums spent on
preparations. Again, no one had asked for such documents until the hearing.
The change to the arrangement of the panels was a ‘suggestion’. It could not
be characterised as an instruction.
[12h00: Application made by Respondents for documents requested during
questioning of Ligen. Adjourned the Hearing to consider overnight. Application
refused on the basis that it was late and would lead to adjournment of the Hearing.
In any event, application was not made by the Claimant and it was for the Claimant to

decide what documentation it deeded to prove its case. Decision given at 13h00, 18
July 2004. ]
(no further questions of this witness)

Evidence of Henry Woods
(Gave evidence in line with his statement)
(questioned by Mr da Costa)
Knew the Mozart Festival would be worth ‘about a million pounds’. Accepted
profit could be ‘of the order of a quarter of a million’. Accepted that in reality
he realised getting the Mozart Festival contract and proceeding with the roof
were financially linked but the details were ‘not his problem’.
The contract at the Ryde Theatre did not go ahead. There was no question in
his mind but that he had been told: “If the panels will fit the other way round,
do it that way”. He had not told Ligen that he thought that arrangement would
not work. He thought all that had been discussed at the negotiating stage.
(no further questions of this witness)
Final Statements by Counsel (19 July 2004) (extracts)

Respondent (from 10h00)
It was quite clear the Respondent knew next to nothing about the £230,000 figure.
No details had been given to it. It knew even less of the details about WDS.
The fact the investments had been sold for more than £370,000 was something that
should be taken into account if it became necessary to consider damages.
The fact that no documents had been produced in support of sums spent on
preparations meant that these were not proved.
It was quite clear that the change to the panels was an instruction.
If it came to considering costs, they should follow the event; the award of the
counterclaim to the Respondents.
Claimant (from 12h30)
On the contrary, it was quite clear that the Respondent did know that the Mozart
Festival contract and this project were linked. Mr Woods conceded so. Even if the
Claimant loses its claim, it should not have to pay the balance of the purchase price.
In any event, the Claimant should not have to pay for the necessary repairs &c to
make the system work properly.
Even if Mr Ligen had told Mr Woods to put the panels the other way round and even if
(which was denied) this could be characterised as an instruction, he was entitled to a
warning from the Respondents who, quite clearly, took the view that such an
arrangement would not work, as indeed proved the case.
The absence of documentary evidence in support of the various sums expended was
irrelevant. The same went for the Respondent’s own claims for extra sums. The
evidence of the witnesses themselves was sufficient.
(end of hearing 16h00, 19 July 2004)

Arbitration Award Writing Topic 3 : Developing a personal style
Topic 3 : Developing a Personal Style
Topic Preview
This Topic follows the release of the ‘Model’ Award on the
scenario in Topics 1 & 2 Activities and provides a variety of
styles and formats in which an Award can be validly presented
and includes :
– Why are there different styles ?
– Choosing an initial template
– The ‘Minibore’ Award
– Other awards
THE ACTIVITY ENCOURAGES STUDENTS TO THINK ABOUT THE
STYLE AND FORMAT THEY MIGHT PREFER WITH SOME
REFERENCE TO REQUIREMENTS OF VARIOUS JURISDICTIONS.
STUDENTS ARE DIRECTED TO A NUMBER OF AWARDS
AVAILABLE TO READ AND THINK ABOUT WHEN
CHOOSING THEIR INDIVIDUAL STYLE AND FORMAT.
Topic Content
1. Why are there Different Styles ?

It has already been noted that different people express things differently
and we should be thankful for that. Life would be very boring
otherwise.
Apart from this personal individuality, there are other reasons why the
world of arbitration has a range of differences in the format and style
of arbitral Awards. The principal reason is related to the basic
differences between the Civil and Common legal systems, both of
which initially concerned domestic Awards almost entirely so, while
the former (Civil law) arbitrations were firmly part of their legal
system, in the Common law arbitration was effectively a matter
solely between merchants with no reference to law.
Civil law Awards were therefore expressed in terms that reflected court
requirements while the attitude in Common law Awards was based
purely on fairness between the parties and commercial
commonsense.
Both these approaches have been considerably altered through the

centuries in their several ways and, more particularly, when international
arbitration became more common – which was only in the last hundred

years as not only private matters entered into the international arena but
also such specialist régimes as investor-state disputes.
(It is worth reviewing the history of arbitration as outlined in the final

Topic of the Module on Arbitration Practice & Procedure.)
There are some further reasons why the forms of Awards vary, one fairly
obvious one being that in many jurisdictions there may be no oral hearing,
just documents presented by the parties, and this will influence the form
of the subsequent Award.
Finally, it should be appreciated that a number of jurisdictions have

specific requirements for the form of a valid Award : by notarisation ; that
each page is either initialled –or sometimes signed in full– by all the
members of the arbitral tribunal ; that the Award be confirmed by a
court ; that it be entitled in the name of the ruler of the jurisdiction ; or
even just that it must state the seat, as in the 1996 English Act.
2. Choosing an Initial Template

The Topic notes you are given demonstrate a fairly common approach in
the Common Law world. This might be suitable for you ; it might not. So
other formats and styles are provided in this Topic for you to see.
However, all this might be confusing unless you consider the main
elements from which to choose :
– Will you place your Operative Part / Dispositive at the beginning or

at the end of your Award ?
– Will you split your Award into sections with suitable headings to the
or just present it as chronologically as possible as one story ?
– Will you write in the first person (“I”, “me”, “my” &c) or in the third
person (“the Arbitrator” or “the Tribunal” &c) ?
– Will you use the titles “Claimant” and “Respondent” or use the
parties’ names (whether in full or as abbreviations) ... or will you
identify each party when considering each issue as the role it is
performing (claimant or respondent) at the time ?
– Will you use a single numbering system for your paragraphs or

sequential where such might be suggested ?
These are just a few general basic matters for you to consider as you sift
through the examples provided to find a format you prefer. You should
then apply your preferences from the above list and you will be starting to
develop your personal style.

This won’t come easily – it is a matter of practice and you will just about
make a start if you go through all the activities in this short Course ; the
rest will be up to you. Like every apprentice before you, practice will be
necessary for improvement and, hopefully, competence in which you will
eventually will be confident.
3. The ‘Minibore’ Award

The following is a (satisfactory) Award written to a previous examination
scenario to give you another idea of form and style :
IN THE MATTER OF THE INTERNATIONAL COMMERCIAL

ARBITRATION LAW 1987 OF CYPRUS
and
IN THE MATTER OF THE UNCITRAL ARBITRATION RULES
between
MINIBORE INC. of Victory Works, Birmingham, Alabama, USA
(Claimant)
and
UNITED ARAB PIPELINES, S.A. of 49 Pas de Calais, Beirut, Lebanon
(Respondent)
____________________________________________________
FINAL AWARD SAVE AS TO DETERMINATION OF COSTS
___________________________________________________
PREAMBLE:
Background
1. This is the final award save as to determination of costs made in
Limassol Cyprus by me, Alois Berset, as Arbitrator in a reference between Claimant
Minibore Inc. (“Minibore”) and Respondent United Arab Pipelines S.A. (“UAP”).
2. Minibore is a specialist subcontractor in the construction industry

engaged in the business of providing pipelines by a process known as pipe-jacking.
UAP is a contractor specializing in the laying of pipelines.
3. The Parties and their representatives are:
The Claimant: Representative and address for service:

Minibore Inc. Ms. Cynthia Edwards
Victory Works Anderson & Barlow
Birmingham, Alabama
U.S.A. Copthorne Boulevard

Birmingham, Alabama
U.S.A.
The Respondent: Representative and address for service:
United Arab Pipelines, S.A. Mr. Taher Khalil
49 Pas de Calais Shalakany Advocates
Beirut, Lebanon Rue Diderot
Beirut, Lebanon
4. On 1 May 2002, the Parties entered into a contract, evidenced by an
exchange of facsimiles, pursuant to which Minibore agreed to provide certain pipe-
jacking services later that same month as a subcontractor to UAP in connection with a
contract UAP had been awarded by Unaligned Petroleum to lay pipelines from Minsk,
Belarus to Vilnius, Lithuania.
The Proceedings
5. Although the contract itself contains no arbitration clause, I received
identical letters, both dated 1April 2003, from the Parties’ representatives stating that
a dispute had arisen between the Parties and inviting me to serve as arbitrator.
6. The letters provided that the Parties had reached agreement that:
(a) the arbitration would take place in Limassol, Cyprus;
(b) the contract is governed by New York law; and
(c) the Japanese Nipponbore machine, employed by the Claimant

in the execution of the contract, proved to be unsuitable and another machine, a
German Volkshaft was used instead.
7. The letters described the dispute to be referred to arbitration as follows:
The dispute concerns the Claimant’s alleged right to the

reimbursement of certain costs amounting to some
LTL2,350,000. This allegation is denied by the Respondent
who counterclaimed for liquidated damages of some
LTL800,000. The Claimant denies this counterclaim.
8. By letter dated 7 April 2003, I wrote to counsel, confirmed my

independence, and stated that I was prepared to take up the Reference if the Parties
accepted my terms and conditions. They did so by letters from their representatives
dated 14 April 2003.
9. On 17 April 2003, a telephonic preliminary conference was held with

the Parties’ representatives.
10. On 18 April 2003, I issued a Procedural Order on consent of the Parties

which:

(a) provided that the UNCITRAL Arbitration Rules 1976 shall

apply to the arbitration as modified by the Procedural Order;
(b) set a schedule for delivery of Pleadings and documents;
(c) gave each party leave to call two witnesses of fact and one
expert to give evidence orally at a Hearing; and
(d) provided that the Hearing would be held in Limassol, Cyprus

commencing on 24 November 2003 for an estimated duration
of 2 days.
11. Minibore timely served its Statement on Claim on 10 June 2003.
12. UAP timely served its Statement of Defence and Counterclaim on 5

August 2003. Among other things, UAP asserted that Minibore had engaged in
tortious conduct.
13. Minibore timely served its Reply to the Defence and Counterclaim on
23 September 2003. Minibore raised an objection to my jurisdiction to hear the
allegations of tort asserted by UAP. The objection was timely made in accordance
with Art. 21.3 of the UNCITRAL Rules.
14. I wrote to the Parties’ representatives, by letter dated 10 October 2003,

and set a schedule for written submissions on the jurisdictional issue. Minibore timely
made its submission on 23 October 2003 to which UAP timely responded on 5
November 2003. Although I had given Minibore leave to file a Reply within 7 days,
if it wished to do so, it did not make a further submission as its counsel did not
consider it necessary.
15. Subsequently, I asked the Parties to consider whether they wished me

to rule on the jurisdictional issue immediately or defer the issue to the Final Award as
I am permitted to do by Article 21.4 of the UNCITRAL Rules. The Parties jointly
determined that they wished to have the issue dealt with as part of the Final Award
which they confirmed by letters dated 18 November 2003.
16. I heard evidence and argument on November 24 and 25, 2003.

Minibore was represented by Ms. Edwards and UAP was represented by Mr. Khalil.
Each Party called one fact witness and one expert witness.
AND I now make this, my AWARD, with reasons as follows:
REASONS:
Facts
17. On 1 May 2002, the Managing Director of Minibore, Mr. Stephens,
met with Mr. Hikam, the Contracts Manager for UAP, on site for the purpose of
obtaining a proposal from Minibore to bore a length of mini tunnel under the railway
line near Molodechno. Both Mr. Stephens and Mr. Hikam gave evidence at the
Hearing.

18. At that meeting, Mr. Hikam and Mr. Stephens discussed the nature and
timing of the work to be performed. Specifically, Mr. Hikam explained that the
pipeline was to be 800mm in diameter, 240m in length, and that the work was to be
carried out during the period 13 to 24 May 2002, as the Belarus railway authority had
indicated that they would only grant a temporary speed restriction (“TSR”) on the
track for that period.
19. Although the Minibore Nipponbore machine was capable of boring a

tunnel of that diameter, according to the specifications set forth in the brochure for the
machine, it could only bore through obstructions no greater than 250mm.
20. At the meeting, efforts were made to obtain geological information

about the site of the proposed mini-tunnel. Specifically, as Mr. Hikam did not have a
borehole survey for the proposed crossing, Mr. Stephens asked to have a trench dug in
order to do a visual inspection. At Mr. Stephens’ request, the trench that was dug was
5m in length.
21. Although Mr. Stephens was given discretion as to the location and size
of the trench, the witnesses were in agreement that Mr. Stephens had asked to have a
trench dug on the far side of the track and that Mr. Hikam did not give him permission
because UAP had not been granted access to that site.
22. Mr. Stephens gave evidence that the visual inspection revealed cobbles
of a maximum size of 150mm at the level of the proposed tunnel. He testified that,
based on those results, he felt confident in recommending the Nipponbore machine.
He conceded on cross-examination that there were boulders larger than that size above
the level of the proposed tunnel.
23. Mr. Hakim testified that he had no experience in pipe-jacking and that
he relied on Minibore’s expertise to tell him what was possible. He gave evidence
that he understood that Mr. Stephens had told him that the Nipponbore machine could
deal with any of the material in the trench even in excess of 250mm rather than that it
would be suitable if the material shown in the trial trench at the level of the proposed
tunnel continued through the length of the tunnel.
24. On cross-examination, Mr. Hakim conceded that he had been provided

a brochure with technical information about the Nipponbore machine, although he
testified that he did not study the specifications.
25. Later that day, Claimant Minibore sent UAP a facsimile that stated:
We offer to carry out the work discussed on site earlier today for the
sum of LTL1,000,000. This work will be carried out by a Nipponbore machine. If the
machine is unable to progress due to meeting an obstruction then we require to be
paid in full for the work that has been completed together with the cost of any
additional resources required to complete the contract.

26. Mr. Stephens conceded on cross-examination that he did not always

send proposals that were so advantageous to Minibore although he claimed he did so
in this case because of the urgency of the project.
27. The facsimile from Respondent UAP stated:
Further to your fax of today’s date please mobilise the necessary

equipment in order to carry out the subcontract work as described in your facsimile of
today’s date which must start on 13 May 2002 and be completed on 24 May 2002.
Until a formal contract is entered into in our standard terms and conditions we will
reimburse you a fair and reasonable payment for the work under this agreement that
we can determine at any time. Liquidated and ascertained damages of LTL100,000
per day will apply.
28. Minibore’s Statement of Claim pleads that UAP’s facsimile
represented a counter-offer which was accepted by conduct by Minibore.
29. Subsequently, drilling was commenced with the Nipponbore machine.

On 20 May 2002, the Nipponbore could not proceed because of the presence of a
boulder. The tunnel was abandoned and a new tunnel was completed on 2 June 2002
using a Volkshaft machine. Mr. Hakim testified that the Belarus railway authority
extended the TSR as an accommodation.
30. Each of the Parties also offered the testimony of an expert witness at
the Hearing. The experts were in agreement that the Nipponbore could not proceed
with the tunnel given the size of the obstructions and that the Volkshaft machine
subsequently used would have no such difficulty.
31. With respect to quantum, Minibore’s expert, Mr. Mason, who was an
employee of the Claimant, took the position that Claimant was entitled to be paid in
full for the work that has been completed including the work done with both the
Nipponbore machine and the Volkshaft machine. He arrived at a figure of
LTL2,200,000 by taking Minibore’s costs and adding a profit component. Where
material came from stock he used current prices.
32. UAP’s expert witness, Mr. Brind, rendered the opinion that Minibore
should have constructed the thrust shaft in a different manner using sheet piling and, if
it had done so, this would have resulted in a savings of LTL10,000 on the original pit
and LTL30,000 overall. On this point, Mr. Mason disagreed that it was appropriate to
use sheet piling and testified that the method used by Minibore was the method that it
universally used.
33. Mr. Brind rendered the further opinion that, in the event that
Minibore’s interpretation of the contract was accepted, Minibore’s damages
calculations had to be reduced to eliminate the profit component and in the case where
material from stock had been used the book value of the materials should have been
used rather than current prices. The figure arrived at by Mr. Brind was TL1,910,000.
34. UAP also introduced into evidence a quotation received from another
contractor to do the work using a Volkshaft machine for LTL1,500,000. Mr. Stephens
was shown this quotation and remarked that it “looks about right.” I note that

although this document was not timely submitted by Respondent with its Statement of
Defence, counsel for Minibore did not object and any objection is waived. See
UNCITRAL Rule Art. 30.
The Parties’ Contentions
35. Minibore claims that it is entitled under the contract, based on the
language of its facsimile, to LTL600,000 for work up to the date of meeting the
obstruction and LTL1,600,000 for the provision of additional resources, i.e. the
Volkshaft machine. As LTL200,000 has already been paid, Minibore seeks a total of
LTL2,000,000 plus interest, compounded quarterly, and costs.
36. UAP contends that Minibore misrepresented that the Nipponbore

machine was reasonably fit for the purpose and that UAP is entitled to have the work
completed for the quoted price of LTL1,000,000. UAP further contends that it is an
implied term of the contract that the methods used would be reasonably economic and
reduces this figure by LTL10,000 on the basis that sheet piling should have been used
to construct the thrust shaft. UAP further contends that the contract had a liquidated
damages provision and it is entitled to deduct LTL800,000 as liquidated damages as
the work was not completed on time leaving a total due of LTL190,000. As
LTL200,000 has already been paid, it seeks the return of LTL10,000 together with
interest, compounded quarterly, and costs.
37. Alternatively, UAP asserts that, if I were to find that Minibore is

entitled to its costs for carrying out the work in accordance with its offer, than the
contract price must be reduced to LTL1,910,000 in accordance with Mr. Brind’s
evidence.
THE TRIBUNAL’S DECISIONS

Jurisdictional Issue
38. Before turning to the merits of the dispute, I will deal with the
jurisdictional issue. Art. 21 of the UNCITRAL Rules provides that the arbitral
tribunal shall have the power to rule on the objection that it has no jurisdiction.
39. It is undisputed that the contract entered into between the Parties
contains no agreement to arbitrate. The Parties’ Submissions on the question of
jurisdiction agree that, consequently, my jurisdiction is founded on the letters of 1
April 2003. The plain language of the letters of 1 April 2003 (quoted above) refers to
“Claimant’s alleged right to reimbursement of certain costs” and Respondent’s
counterclaim “for liquidated damages.”
40. The claims of tortious conduct alleged by UAP are closely connected
to the contract claims as UAP alleges that Minibore owed a duty of reasonable care to
UAP to accurately represent the capabilities of the Nipponbore machine to perform
the work specified in the contract.
41. The language used by the Parties in the letters of 1 April 2003 does not
expressly refer to the legal nature of the claims asserted by the Parties. I find that

especially significant given the fact that the letters were written after the dispute had
already arisen and been pending for almost a year i.e. at a time when the Parties knew
or should have known the nature of their dispute. If the Parties had intended to limit
the arbitration to claims sounding in contract they had the ability to do so.
42. It is well-settled that arbitration clauses are to be broadly construed. I

find that the language of the letters of 1 April 2003 is sufficiently wide to encompass
the claims of tortious conduct raised by UAP which are closely linked with the
contract claims. Accordingly, I hold that I have jurisdiction to hear the allegations of
tortious conduct set forth in UAP’s Statement of Defence and Counterclaim dated 5
August 2003.
The Merits
43. I turn first to UAP’s claim that Minibore breached its duty of care to
accurately represent the capabilities of the Nipponbore machine. I heard argument
from counsel for the Parties as to whether such a term could be implied into the
contract as a matter of law and whether Minibore owed such a duty of care. However,
I need not reach these legal issues unless UAP has established by the preponderance
of the evidence that a misrepresentation was made.
44. Mr. Hakim admitted that he received a brochure which contained the
technical specifications for the Nipponbore machine. Although he testified that he did
not study the brochure, I find that UAP was on notice of the limitations of the
Nipponbore.
45. Moreover, Mr. Hakim was aware that Mr. Stephens had requested that
a trench be dug on the other side of the railroad track for which permission was not
granted. He therefore knew that the visual inspection that was done by Nipponbore
was not as complete as Nipponbore would have liked. He also knew that only a small
length of trench had been dug compared to the overall length of the project.
46. Most importantly, he received the facsimile offer from Minibore which
expressly made provision for the possibility that the machine might be “unable to
progress due to meeting an obstruction.”
47. The evidence of Mr. Stephens and Mr. Hakim was conflicting as to
whether Mr. Stephens stated to Mr. Hakim that the Nipponbore machine was capable
of performing the work specified in the contract or whether he merely indicated that
the Nipponbore would be suitable if the material shown in the trial trench at the level
of the proposed tunnel continued through the length of the tunnel.
48. On balance, I find the evidence of Mr. Stephens more persuasive. I

hold that UAP, which has the burden of proof on this claim, has not established by a
preponderance of the evidence that Minibore acted tortiously.
49. The next issue to be addressed is the contractual standard to be applied

in determining the amount of money that Claimant Minibore is entitled to be paid for
the work that it performed under the contract.

50. As discussed above, the evidence established that the Parties were
aware that there was a risk that the Nipponbore machine would meet an obstruction
and would not be able to proceed. Knowing these risks, Mr. Stephens made an offer
to UAP which attempted to shift that risk to UAP.
51. I find that the evidence establishes that UAP did not accept Minibore’s
offer. Rather, the counter-offer sent by UAP was accepted by conduct. In fact,
Claimant conceded this point both in its Statement of Claim and in its counsel’s
opening statement. UAP’s counter-offer quite clearly states that it will only reimburse
Minibore “a fair and reasonable payment for the work under this agreement.” I hold
that this is the standard to apply to Minibore’s claim for reimbursement of costs.
52. I hold that in evaluating what a “fair and reasonable payment” is that
the proper analysis is to determine the fair and reasonable charge for performing the
contract work with a Volkshaft machine. It is not appropriate for UAP to bear the cost
of the work performed with the Nipponbore machine as (i) it received no benefit from
the aborted tunnel; (ii) it did not accept Minibore’s proposal that the risk be borne by
UAP; and (iii) the experts were in agreement that the work could have been
accomplished with the Volkshaft if it had been used from the outset. Although, the
cost of performing the work with the Volkshaft is greater than the quoted contract
price, the experts were in agreement that, given the conditions of the terrain, the
Nipponbore could never have completed the project.
53. Mr. Mason, on behalf of Minibore, testified that the appropriate charge
for the work performed by Minibore with the Volkshaft machine was LTL1,600,000.
Although issues were raised as to Mr. Mason’s impartiality, as he is an employee of
the Claimant, these figures were accepted by Mr. Brind, UAP’s expert, with only
several proposed revisions.
54. First, Mr. Brind opined that the figure should be reduced to eliminate
the profit component. Art. 33 of the UNCITRAL Rules requires that in all cases the
arbitral tribunal shall take into account the usages of the trade applicable to the
transaction. I find that it is customary in the construction industry that the contractor’s
fees include a profit component. I hold that Minibore is entitled to its profit
component.
55. Second, Mr. Brind opined that book value should have been used for
the materials in stock and cited to examples where materials had been written down to
zero. I hold that it is not “fair and reasonable” that UAP receive materials without
charge because they happen to have been in Minibore’s stock. I accept Mr. Mason’s
method of looking to current prices.
56. Finally, Mr. Brind opined that a different method of construction for
the thrust shaft should have been used and that this would have reduced the price of
the work. Mr. Mason testified that the method of construction used was that typically
used by Minibore in its work and Mr. Brind conceded that he had no practical
experience that led him to assert that sheet piling was a more appropriate method.
Accordingly, I hold that this deduction is not appropriate.

57. I hold that the LTL1,600,000 claimed by Minibore with respect to the
work completed with the Volkshaft machine is “fair and reasonable payment” for the
work done. I note that the reasonableness of this figure is further supported by the
fact that it is within 10% of the quotation of LTL1,500,000 given to UAP by a
competing contractor for performing the work with the Volkshaft.
58. The issue of the liquidated damages claimed by UAP remains to be

addressed. In their argument counsel agreed that, in order to be enforceable, a
liquidated damages provision has to bear a reasonable relationship to the range of
losses that could reasonably have been anticipated when the contract was made. UAP,
which had the burden of proof on its claim for liquidated damages, adduced no
evidence at the hearing on this issue. I hold that UAP is not entitled to liquidated
damages.
Summary
59. I find that the balance due to Minibore under the contract is
LTL1,400,000 which represents LTL1,600,000 for the fair and reasonable payment
for the work done less the LTL200,000 paid to date. I find that UAP is due nothing on
its counterclaim.
Interest
60. Minibore seeks interest, compounded quarterly, on the award.

Although neither the International Commercial Arbitration Law 1987 of Cyprus nor
the UNCITRAL Rules contain express provisions regarding interest, I have the power
to award interest because the Parties have agreed that the substantive law of New
York applies to this contract. New York law does not permit the award of compound
interest and provides that simple interest shall be awarded at the rate of 9 percent. I
hold that Minibore is entitled to 9 percent interest on LTL1,400,000 commencing on 2
June 2002, the date of completion of the work, to the date of this Award.
Costs
61. The UNCITRAL Rules provide in Art. 38 that the successful party is
entitled to its reasonable costs. In this case, neither party was completely successful.
Minibore prevailed on its claim for reimbursement but to a lesser extent than it had
claimed. Minibore also prevailed with respect to UAP’s counterclaim. UAP
prevailed on the jurisdictional issue. In these circumstances, and taking note of the
costs wasted in the jurisdictional issue, I find that UAP shall pay Minibore 75% of the
reasonable costs in this arbitration.
62. With respect to my own fees and expenses, which I assess and settle at
the sum of 10,000 French francs, for the reasons stated above, I find that Minibore
shall pay 25% of my fees and UAP shall pay 75%.

DISPOSITIONS:
AND I NOW, for the reasons set out herein, AWARD and DIRECT that:
63. UAP shall pay to Minibore in good cleared funds, before the close of
business in Alabama, U.S.A. on December 10, 2003, the sum of LTL1,400,000, net of
any applicable tax .
64. UAP shall pay simple interest at the rate of 9% on the amount awarded
in 63 above commencing on 2 June 2002 until the date of payment, net of any
applicable tax.
65. Within fourteen days of the date of my award, UAP shall pay 7500
French francs and Minibore shall pay 2500 French francs for my fees and expenses in
this reference to the date of this my award, net of any applicable tax.
66. UAP shall pay Minibore, within fourteen days of the date of my award,
75% of their reasonable costs, the same to be determined by me on application if not
agreed and I reserve the reference for that purpose.
This Award is made and signed in Limassol, Cyprus, the seat of this arbitration, this
30th day of November 2003 by me Alois Berset, as Arbitrator
[signed] Alois Berset
It is not for you to query the details and decisions made (though you may
find the story interesting ...) but to look at the form and style used. This
is why this particular Award is reproduced here.
(You might find it useful to look at the way the reasoning is set out – as a
guide for you in writing your Awards.)
4. Other awards
If you are still searching for your preferred format and style, take a look at
the other Awards attached to this Topic and listed as :
– Great Eastern v MoPNG
– Sempra v Argentina ICSID Award
– eurotunnel partial award 2007
and, if anyone would like to see example Awards in French, German or

Spanish, just ask in the Forum to this Topic.

Arbitration Award Writing Topic 4 : Detailed Requirements
TOPIC 4 : Detailed Requirements
Topic Preview
This Topic details further the requirements necessary in a Final
Award so that it is both reasoned satisfactorily and enforceable,
with particular reference to the Award Writing Examination.
Where specific, the materials are presented with reference to
English Arbitration law with sections on :
– Objects of this Course
– The Coursework
– The Examination criteria
The activity presents an international examination-type

situation and requires students to begin to write an
award on it.
Topic Content
1. Introduction
There are three things this Course attempts to explicate :
1. How to Write an Enforceable, Reasoned Final Arbitration Award ;
2. How to Pass the RGU Award Writing examination ; and
3. That you are on your own in an extremely testing environment.
This last is probably the most difficult of the three – no longer can you
depend on, in Lorna Scott Fox’s words, ‘the glib, abstract knowledge
authority uses as armour’ : you have to appreciate that ...
 you owe a exceptional duty of care to the parties that appoint you,
directly or indirectly ;
 you and you alone must discharge that duty in its fullest, firmest
and fairest extents ; and
 you therefore need to be alert, attentive and resourceful throughout
your arbitrations in order not only to be but seen to be confidently
competent in all that you do and need to do.
After this, the first item above is more onerous than the second as you will
be exposed to a number of matters that will probably not arise in the
Examination but which you should know about if you are to become

involved in international commercial arbitration, be it as a sole arbitrator,

one of a panel of arbitrators, ad hoc or under institutional rules and/or
administration, advocate for a party, party, advisor, amicus curiae, expert
(party or tribunal appointee), witness of fact or in any other way
concerned in the arbitral process in one or more of its many forms.
There are, of course, particulars in the Examination you need to be aware
of, the main one being that these tests require greater attention to detail
than you might reasonably expect in real life, especially regarding your
ability to demonstrate your analytic skills, including the ability to identify
and quote from relevant substantive and procedural laws in support of
your reasoning.
Being an arbitrator is to practise as a craftsman and those of you who
have been journeymen to date –through the previous Arbitration Courses
– are no longer apprentices but standing on the brink of your initiation
into full membership of the arbitral guild, your tests being those of this
Course which are onerous, though no less so than any ‘burden which you
shall take on in accepting an arbitral appointment’.
These are the same tests as are given to students wishing to satisfy
the CIArb’s academic requirements for Fellowship and are,
therefore, also available to those who have otherwise, generally
through practical experience, been exempted from each of those
earlier apprenticeship stages.
It follows that you need to find your personal style, as noted in the
previous Topic, mostly as to how you present your decisions, and here you
will need to appreciate that this is much like the point in life (as Ralph
Waldo Emerson saw it in his Nature) which is to have ‘an original relation
to the universe’, in this context, to the arbitral universe. And there is
something else : you must constantly ‘prepare a face to meet the faces
that you meet’,1 for if you do not recognise that your ‘face’ –or more
generally your actions– are being interpreted in this way, you are likely to
behave in a way that works to your disadvantage, often quite seriously so.
This Course is unlike any other in that it is definitely NOT an academic
exercise but one in which you, the participants, have to be exceptionally
pro-active since you are now being tested as to three elements – as a
judge, albeit essentially (more importantly ?) private :
Knowledge – the demonstration of :

theoretical and practical understanding, awareness and
familiarity with the practice and procedure of arbitration,
knowledge and practical application of the relevant
arbitration law.
Interactivity / Self-presentation – of personality and presence
of mind, and ability to :
marshal and present information, ideas, descriptions, arguments
and decisions clearly, logically and concisely ;
be firm but courteous ;
1
This is a rewrite of a line from The Love Song of J Alfred Prufrock.

listen / take note carefully ;

have a quick understanding and grasp of a problem ;
not to get flustered or exhibit indecisiveness ; and
inspire the parties to have confidence in the process and the
Tribunal.
Judgment – ability to :
come to sensible, logical conclusions ;
act and be seen to act impartially and fairly ;
give a decision and the reasoning for that decision with clarity
and the avoidance of convolution ;
exhibit judicial capacity generally.
As you can see, we are once again referring to a craft rather than an
academic subject where its performance is more important than being
able to reproduce information learnt by rote.
And, as in every craft, apprenticeship is what is really required, and the
activities throughout this Course have been deliberately designed to
emulate this as best can be in an online training process (that is, also,
rather tight in its time schedule) and, of course, can only fall short.
Nonetheless, the attempt is made and you, the participants, are expected
to perform your part, acquiring your own style and method(s) as you
participate and, if you have indeed put in the work and had adequate
basic talent on which to build your practical skills, you will have achieved
the aspired for goal : a satisfactory, reasoned, impartially decided
and enforceable Final Award.
In your performance, therefore, you have to be discriminatory ... in all
things, including what you read in these Course Notes and books since,
I’m sure you know by now, nothing is perfect.
2. The Examination
REAL LIFE versus EXAMINATION
A arbitrator's task is artificial in the way that he has to decide what he has
been asked to decide – no more and no less. This applies equally to what
evidence he may refer to – no more and no less. So, if an arbitrator finds
anything outside either of these 'boxes', he must exclude it.
In real life it is quite feasible, in most situations and even in England, for
an arbitrator to ask the parties VERY CAREFULLY 'whether they meant this
or that or whatever' as a point of clarification and, on receipt of what
presentations the parties may make in response, then deal with them.
Of course, this cannot apply in the even more artificial situation of
an examination.
In real life, an English arbitrator is cautioned NOT to suggest any
legislation that the parties (or any of them) has not proposed as being

applicable to a certain issue ; the reason for this is that an unhappy 'loser'
might well use this as a reason to have the award set aside or nullified ;
citing ‘self-evidence’. This embargo –which doesn’t apply in virtually any
other jurisdiction– is becoming less strict.
However, in the examination scenarios, it is clear that the usual large
volume of documents and recorded oral evidence cannot be presented as
they would be in a real case, and this particularly refers to quotations of
law so, your examiner will be looking for you to mention a few WELL-
KNOWN ('trite') legal points where relevant so that he can judge that you
DO know enough law and are able to apply it fairly and impartially.
Trite law is law that, if you do not know it, you should. It is like
saying that two and two add up to four. For example, there is a
general presumption of innocence in English criminal law. That is
trite law, something that everybody knows or should know.
As to contract, it is often that a term or condition is queried and this
is where, for example, the Unfair Contract Terms Act 1977 may be
relevant ; or, perhaps, a reference to the differentiation between an
invitation to treat and an offer, and its subsequent acceptance
might apply ; and there is often something to do with remoteness :
Hadley v Baxendale [1854], Victoria Laundry (Windsor) v Newman
Industries [1949] &c.
[Outside the UK, the reverse attitude effectively applies : see the ILA
Resolution of August 2008 (in Topic 5) and note the general Civil Law legal
systems’ requirement that an arbitral tribunal is also expected to inquire
after facts as it may consider necessary in order to discharge its duty.]
In English contract law (and in many other jurisdictions, especially those
that follow the Common Law tradition) virtually any term or condition can
be agreed between parties, provided they are not obviously illegal and, in
making his decision, an arbitrator is in this respect no different from a
judge and has to abide with what he finds were the terms and conditions
the parties agreed when they made their contract. Remember those
occasions when judges have had to decide –and have so reported in their
judgments– according to what they considered to be 'one-sided' but not
'unfair' (remember the UCTA) in order to uphold what the contract actually
was.
The 'Models' you are provided with are NOT perfect, at least not to an
examiner's satisfaction. They are NOT meant to be perfect but to show
SOME WAYS of how to do enough to pass and write an acceptable Award.
You should read these / everything critically, with discernment.
Also, in real life most arbitrators do their best to get the parties to present
them with an agreed list of issues at the beginning or end of the oral
hearing(s) or whatever other appropriate stage may apply in the
arbitration. Usually, the parties don't do this, either because they refuse to
agree anything or because they fear that they may leave out something
important so, in the end, it is generally the same both in real life and the
examination ... one way or another you need to identify what the
actual issues are and then decide them so that you can apply those
decisions when you come to considering each and every claim. Your

examiner will be looking for this : a precise list of issues in logical order of
importance.
As to reasoning, for each issue you should list the relevant agreed facts, if
any, then the contentions on the relevant disputed facts which you decide
('find') and to which both you then apply what law is relevant to come to a
decision on that issue as to liability ... followed by the same process
regarding quantum (when, as is usually the case, the claim is monetary)
which then gives you your final decision on that issue and what claims are
relevant to it.
3. The examination criteria

Here are the detailed elements an Examiner is asked to check in your
Awards :
Technical merit – Formalities

Heading – reference to arbitration law, rules and parties
Award title
Identifying :
– Arbitration agreement quoted
– Appointment (nomination by CIArb President ? and acceptance, dates)
– Contract date, purpose, consideration
– Juridical seat
– Substantive law
– Procedural law
– Dispute ('trigger')
– Parties identified and addresses
– Recital of relevant directions / procedural order(s)
– Place and date of hearing(s)
– Representation
– Headings, numbering and physical presentation
Technical merit – Award

 Each issue clearly identified, dealt with and disposed of
 Interest details (type, rate, rests)
 Amount of arbitration costs (applicable taxes ?)
 Liability for costs for interlocutory matter(s)
 Correct statement amount of payments / other remedy
 Date for payment / compliance

 Reference to taxes
 Liability for parties' costs (applicable taxes ?)
 Amounts for arbitration costs (applicable taxes ?)
 Provision for reimbursement if necessary
 Interest on non-compliance
 Award dated, at seat
 Award signed
Judicial merit – General

 Relating the history leading to the initiation of arbitration
 Inclusion of main contract terms relevant to the dispute
 Listing of main agreed facts
 List of main disputed facts
 Formulation and ordering of issues
Judicial merit – Issues
Interlocutory matter :
 Described
 Handling and weighing submissions
 Knowledge of law
 Application of law to submissions
 Conclusions – decisions & costs
Jurisdictional matter :
 (ditto)
ISSUE 1 :
 Identified issue clearly
 Handling and weighing evidence
 Knowledge of law
 Application of law to facts
 Conclusions on liability
 Conclusions on quantum / other remedy
ISSUES 2/3/4 etc :

 (ditto)

Judicial merit – Style

 General approach and organisation
 Conciseness
 Clarity and coherence
 Readability
Enforceability
Marks are deducted if :
A. award is internally inconsistent
B. award reaches a conclusion that is factually or legally impossible
C. award reaches a conclusion based on arbitrator’s own evidence
or otherwise inadmissible material
D. award fails to deal with all issues or dealing with issues outside
the dispute or remit of the arbitration
E. award is not enforceable for want of essential formalities
F. award is not enforceable for ambiguity
G. award would be set aside for serious irregularities
H. award is unintelligible
I. incorrect (incomplete) identification of a party
10 Marks are deducted if any of these enforceability points are
questionable ; 20 if serious ; FAIL if obvious
Topic Activities
Activity 1- Suggest 4 hours
Attached are a number of papers which form part of an international

Award Writing exercise which you should complete at the end of the next
Topic.
As in the Examination, these papers are sent to you ‘with a view to your
being able to grasp the nature of the case in advance of the examination
proper and to do any research you feel necessary’.
You generally receive this first ‘bundle’ of papers some days before the
examination date and you should make use of those days leading up to
the examination day to consider the content of any recitals you will include
in your award.

On the examination day you are permitted to have your recitals prepared
in advance (typed, if you wish) and include them with your submission
without writing them out again.
This is recommended ; you will probably do it better in advance

since you are not under the pressure of time (4 hours) to complete
your award in the set examination period.
Even if you have to change something in your recitals because of further

information in the second bundle (which you are given at the start of the
examination day) this will be easier and faster than writing it all out then.
The exercise in having written out your recitals will also have acquainted
you intimately with the case and prepared you for the second bundle.
You should also begin to identify and list the issues in dispute from
this first bundle.
Don’t forget ; this examination is ‘open-book’ – you may refer to any

documents, notes and books you wish into it. (It is recommended that
you have these Course notes with you.)
This Activity requires that you WRITE OUT YOUR RECITALS based solely
on this bundle AND ATTACH ANY OTHER PRE-PREPARED PARTS OF YOUR
FINAL AWARD such as: introductory phrases for the various sections in
your award; alternatives for awarding costs (both of the reference and of
the award); your signature, its witnessing, date, location. Note that you
are writing your award on a particular day which you should take as
23 August 2009.
……………………

Sunday Ayinde & Co.

Legal Practitioners, Notary Public
No. 14 Eruba Road
PO BOX 523
Accra
GHANA
13 April 2008
Professor Dr Leny Buurman
Faculty of Aeronautics
Erasmus University Rotterdam
P.O. Box 1738
3000 DR Rotterdam
THE NETHERLANDS
Dear Professor Buurman

I have recently nominated you to a client of ours – Accra Airways
Limited – for appointment as an Arbitrator in a matter concerning
the modification and overhaul of four aircraft engines with a United
Kingdom Company called Harmony Plc.
The Legal Adviser of our Client will get in contact you soon,
notifying you of your appointment as such.
In the meantime, please let me know of your availability and if
there are any matters you think might affect such an appointment.
I met some of your co-lecturers at the West African Arbitration
meeting in Lagos recently. They said that your Course had been
very stimulating and agreed with me that its organisation was the
best they had experienced!
My greetings to your excellent staff.
Sincere regards and best wishes
SUNDAY AYINDE

Leny Buurman
Aeronautics Consultant
PO Box 23841
Aberdeen
SCOTLAND
27 April 2008
Mr S Ayinde
Ayinde & Co
No. 14 Eruba Road
PO BOX 523
Accra
GHANA
Dear Sunday
Thank you for your letter of 13 April nominating me as arbitrator. I confirm that I
have had no dealings with either of the parties you note in your letter and I attach my
schedule of charges for such work.
If this matter proceeds, and I need to travel to Ghana, I would appreciate if you could
let me know of any particular local requirements in Ghana at present, especially as
regards visas, currency controls and exchange, credit card usage and personal safety. I
am sure many things have changed since I was there in the mid 1980s.
I received your letter yesterday via the University. As I only visit Rotterdam when I
am lecturing, would you please note my address (as above) in future correspondence?
My best regards
Yours sincerely

ACCRA AIRWAYS LIMITED

Tamale House
Kotoka International Airport
Accra
GHANA
May 26, 2008

Faculty of Aeronautics
Erasmus University Rotterdam
P.O. Box 1738
3000 DR Rotterdam
THE NETHERLANDS
Dear Professor,
RE: NOTIFICATION OF APPOINTMENT AS ARBITRATOR

We have the pleasure of appointing you as an Arbitrator in respect of a dispute over
the modification/overhaul of some of our engines with a company called Harmony Plc
of 1840 West Street, Lossiemouth, Scotland, United Kingdom of Great Britain and
Northern Ireland.
This dispute arose from Article 9 of the undated Agreement executed between the
Parties which made provision for arbitration. We have therefore accordingly notified
Messrs Harmony Plc of your appointment.
Please find enclosed relevant documents on the subject of the dispute.
We note your letter to our lawyer, Mr Sunday Ayinde, and agree to your schedule of
fees.
Yours faithfully
For: ACCRA AIRWAYS LIMITED
OLJU H OMAN
Ag. COMPANY SECRETARY/LEGAL ADVISER
For: MANAGING DIRECTOR/CHIEF EXECUTIVE

Harmony Plc
Aviation Support
1840 West Street
Lossiemouth
Scotland
UK
March 12, 2008

The Managing Director
Accra Airways Ltd
Tamale House
Kotaka International Airport
Accra
GHANA
Re: Aircraft Engines for modification/overhaul
Dear Sir
IN REFERENCE TO:
1) AIRCRAFT ENGINE MODIFICATION/OVERHAUL AGREEMENT OF
JANUARY 15, 2007,
2) POWER OF ATTORNEY ALSO DATED JANUARY 15, 2007
3) MEMORANDUM OF UNDERSTANDING DATED 22 JANUARY, 2008
4) THE AIRWAYS FAX OF 5 FEBRUARY 2008
5) THE COMPANY LETTER OF 5 FEBRUARY 2008
6) RECONCILIATION AND AGREEMENT REACHED ON FEBRUARY 28,
2008
PLEASE TAKE NOTICE THAT YOU HAVE BREACHED YOUR COVENANT

WITH US TO PAY $500,000.00 AGAINST ITEM C OF OUR
AGREEMENT DATED FEBRUARY 28, 2008.
PLEASE TAKE FURTHER NOTICE THAT YOU ARE HEREBY GIVEN 14

DAYS TO LIQUIDATE YOUR ENTIRE DEBT TO US WHICH STANDS AT
$2,589,379.92 AS AT FEBRUARY 28, 2008. FAILURE TO MEET
THIS NOTICE WILL COMPEL US TO EXERCISE OUR RIGHT OF
FORECLOSURE AND SALE OF YOUR ENGINES WHICH WAS
RECONFIRMED IN SECTION D OF OUR AGREEMENT WITH YOU OF
FEBRUARY 28, 2008.
UNLESS YOU WIRE THE FUNDS INTO OUR ACCOUNT ON OR BEFORE

THE LAST DATE OF THIS NOTICE OR MAKE AN ACCEPTABLE
PAYMENT PROPOSAL, NO FURTHER NOTIFICATION WILL BE GIVEN
TO YOU PRIOR TO THE SALE OF YOUR ENGINES.
THANK YOU
JOHN TERRAM
PRESIDENT


Tamale House
Accra
GHANA
March 24, 2008

The President
1840 West Street
Lossiemouth
Scotland
UK SENT ALSO BY FAX
Dear Sir
RE: AIRCRAFT ENGINES MODIFICATION/OVERHAUL AGREEMENT
Please refer to your letter of March 12, 2008 wherein you propose to sell our engines
presently in your custody under the above Agreement.
We are now under new management with a new Managing Director and we are
desirous of settling this matter amicably and we invite you to an urgent meeting at our
office in Accra at 2.00 p.m. on March 27, 2008 with a view to resolving this problem.
Furthermore, in accordance with Article 9 of the above Agreement, we hereby declare

that a dispute or difference has arisen (see the attached Notice of Arbitration).
We note that you cannot dispose of the said engines as that would contravene the
terms of the Agreement.
We repeat that we are very optimistic that this matter will be resolved amicably and
we look forward to hearing from you and seeing you at the proposed meeting.
Yours faithfully,
For: ACCRA AIRWAYS LIMITED
OLJU H OMAN

NOTICE OF ARBITRATION
BETWEEN
ACCRA AIRWAYS LIMITED … …

CLAIMANT
AND
HARMONY PLC … …
RESPONDENT
With reference to an Arbitration clause embodied in Article 9 of the undated Aircraft

Engines Modification/Overhaul Agreement between the above Parties, and the
disputes and differences which have arisen between the Parties thereunder.
WHEREAS the said Agreement provides that any such disputes and differences shall
be referred to arbitration.
TAKE NOTICE that on behalf of ACCRA AIRWAYS LIMITED:
We have appointed Ms LENY BUURMAN of Faculty of Aeronautics,

Erasmus University Rotterdam, P.O. Box 1738, 3000 DR Rotterdam,
The Netherlands as Arbitrator.
Dated this 24th day of March, 2008
OLJU H OMAN
COMPANY SECRETARY/LEGAL ADVISER
Whose address for service is:
Accra Airways Limited

Tamale House
Accra
GHANA
NOTICE TO:
The President
1840 West Street
Lossiemouth
Scotland
UK

DOCKET/INVOICE

KOTAKA INTERNATIONAL AIRPORT
ACCRA
TO:
HARMONY PLC
1840 West Street
Lossiemouth
Scotland
UK
FOR:
DELIVERY OF 4 (FOUR) ENGINES TO YOUR PREMISES:

2 No. ID 1T-3L6LT9, Serial Numbers 303380 and
303378
2 No. ID 2T-95 with S/N 424771 and S/N 301094
FOR MODIFICATION/OVERHAUL AND RETURN TO BASE
VALUE: $4,500,000.00 FOR INSURANCE WHEN RETURNED IN

SERVICEABLE CONDITION
DATE SHIPPED: 20 JANUARY 2007
CARRIER: DIRECT AAL FLIGHT MIAMI

(Extract from Contract)
THIS AGREEMENT is made the day of 200- between MESSRS

HARMONY PLC, a Company incorporated in Scotland, United Kingdom
of Great Britain and Northern Ireland and having its principal office at
1840 West Street, Lossiemouth, Scotland (hereinafter referred to as “The
Contractor” which expression shall where the context so admits include
its successors-in-title and assigns) of the first part:
AND
MESSRS ACCRA AIRWAYS LIMITED, a Company incorporated in
Ghana and having its principal office at Tamale House, Kotoka
International Airport, Accra (hereinafter referred to as “The Company”
which expression shall where the context so admits include its successors-
in-title and assigns) of the other part.
WHEREAS:
1. The Company is the owner of the following aircraft engines:

a) 2 No. ID 1T-3L6LT9 with S/N 303380 and S/N 303378
b) 2 No. ID 2T-95 with S/N 424771 and S/N 301094.
2. The Company wishes and the contractor agrees to modify and overhaul these
engines to make them serviceable on the following terms and conditions herein
contained.
3. For the purposes of this Agreement the value of the engines when modified and
overhauled to serviceable condition is $4,500,000.00
ARTICLE 1 – COMMENCEMENT
…
B. The term of this Agreement shall be for 12 (twelve) months from the delivery
date of the 4 (four) engines to the Contractor’s workshop with an option to
renew for a further period to be agreed by both parties depending on the
amount outstanding on the lease and upon the same conditions as already set
out in this Agreement.
ARTICLE 2 – DELIVERY AND RE-DELIVERY OF ENGINES

A. The Company shall deliver the 4 (four) engines freight pre-paid to the
Contractor at Lossiemouth, Scotland, UK on or before the day of 200-
or on such other date as agreed by both parties.
B. Upon completion of the modification and overhauling of the engines, the

contractor shall ship the engines freight collect to the Company.

ARTICLE 3 – MODIFICATION/OVERHAUL AND LEASE BACK OF

ENGINES
A. Pursuant to this Agreement, the Contractor shall take delivery of engines ID
1T-3L6LT9 S/N 303380 and S/N 303378 and carry out the necessary service
in order to make them serviceable for aircraft.
B. Upon completion of the necessary modification and overhauling to be

performed on the 2 (two) engines, the parties to this Agreement have agreed
that the engines shall be leased to the Company at equal instalment payments
of $109,000 per engine per month for a period of 12 months.
C. The Contractor shall also take delivery of engines ID2T-95 with S/N 424771
and S/N 301094 for overhaul in order to make them serviceable and upon
completion of the necessary overhauling shall lease back the engines to the
Company at the rate of $41,500 per engine per month for a period of 12
months.
D. Upon completion of the necessary modification and overhauling of the 4 (four)

engines, the company has agreed to make the first monthly lease back payment
to the Contractor’s account upon certification of the engines’ airworthiness.
ARTICLE 4 – OTHER GENERAL TERMS

A. It is mutually agreed between the parties that the Contractor shall be at liberty
to subcontract the modification and overhauling of the engines to a third party
facility in the UK PROVIDED that such third party repair facility is competent
in the provision of the services required. The Contractor guarantees and
agrees to be responsible for the standard of work to be performed by such third
party.
B. Chapter 6, Section 2 of the UNIDROIT Principles of 1994 shall apply taking

note of reference to arbitration (Article 9 herein) and that time is of the
essence.
C. The parties agree that the Contractor shall have a lien/mortgage in the event
that the Company defaults in making the lease back payment after the due
date. It shall be deemed an event of default if the Company fails to make
payments to the Contractor’s account within 7 working days of a due date.
ARTICLE 6 NOTICES
All notices under this Agreement shall be addressed to the Contractor and/or the
Company as follows:
The Managing Director The President

ACCRA AIRWAYS LIMITED Harmony Plc.

Tamale House 1840 West Street
Kotoka International Airport Lossiemouth
Accra Scotland
GHANA UK
Fax: 233 1 6174763 Fax: 44 305 288 7012
ARTICLE 7 – JURISDICTION
This Agreement shall be deemed made in Scotland in the event of default or other
breach of enforcement of this Agreement.
ARTICLE 8 – DISCHARGE OF LIABILITY

At the end of the 12 (twelve) months repayment period and upon the Company
concluding the lease back payments as specified herein, the company shall be
discharged of any lien or mortgage the Contractor may hold on the engines. Title in
the engines shall revert back to the Company without any encumbrance.
ARTICLE 9 – ARBITRATION
Should any dispute or difference arise between the parties hereto touching and
concerning this Agreement, then either party shall forthwith give to the other notice in
writing of such dispute or difference which shall first be settled amicably failing
which it shall be referred to arbitration.
“COMPANY” “CONTRACTOR”
ACCRA AIRWAYS LIMITED HARMONY PLC
Signed: Basil Zukra Signed: W O Carter

Name: BM Zukra Name: William O Carter
Title: Managing Director Title: Company
Attorney
Date: January 15th 2007 Date: January 15th 2007
WITNESS: WITNESS:
Signed: Frances Olagabi Signed: James Clinton
Name: Mrs Frances Olagabi Name: James PR Clinton
Title: Acting Chief Legal Officer Title: Clerk
Date: 19/ 1/ 07 Date: 15th January 2007

Harmony Plc
Aviation Support
1840 West Street
Lossiemouth
Scotland
UK
June 13, 2008
Professor Leny Buurman

PO Box 23841
1076 MC The Hague
THE NETHERLANDS
We have received a copy of the letter and Notice of

Arbitration sent to you by Accra Airways Limited, dated
March 24, 2007.
We should further inform you that the meeting on March
27, 2008 resulted in AAL confirming the earlier Docket of
Reconciliation which is attached. We thought that this
DoR was an ‘amicable settlement’ of our disputes but AAL
did not perform it.
We apologise for any delay in responding to your letter.
We tried again to agree terms with AAL with no luck and,
unfortunately, our Company Attorney, Mr Carter, is ill
and we have no-one else to advise us in this matter.
We know that we are in dispute with AAL and that they owe
us money. We must have these disputes resolved and we
now agree in principle to arbitration.
However, as Mr Carter’s illness is likely to keep him
away from work for some time, I write to ask if you would
advise us about the procedure involved so we can do what
we should in this matter.
Yours respectfully
JOHN TERRAM
PRESIDENT

Leny Buurman
Aeronautics Consultant (&c)
23 June 2008
Mr John Terram, President
Harmony Plc (&c)
Re: Accra Airways Limited –v– Harmony Plc
Dear Mr Terram
Thank you for your letter of 13 June.

The procedure in arbitration is basically similar to court procedure without the
formalities. However, as the outcome is enforceable like a court judgment, there are
some principles that must be upheld. I will try to explain the most pressing of these in
this letter with reference to your dispute.
First, parties in arbitration get to choose their ‘judge’. In this case, there seem to be no
details of how this should be done under Article 9 of your contract with AAL. As
AAL has already appointed me, you might wish to appoint your arbitrator and it may
then be necessary to appoint a third ‘chairman’ of the arbitral tribunal, depending on
the national law governing the procedure for the arbitration. Of course, each/all
arbitrators have to be paid so more arbitrators will mean more expense. You are also
at liberty to choose me as sole arbitrator.
A second major point in arbitration is that all communications with the arbitrator/s
must be known to the other party and I have copied this letter to AAL as I now copy
to you all the communications I have had from them. Please copy AAL with every
communication you make to me in future. This ‘openness’ will apply to any oral
hearing at a later date.
I note that your contract with AAL has not defined the law to govern the arbitration
and I ask you to consider what law this should be. The reason for this choice (which
isn’t available to a judge!) is to avoid one party being subjected against its will to the
procedures of the other party’s national law – one of the advantages of international
arbitration. AAL may wish, say, the Ghana 1961 Arbitration Act to apply and, of
course, you may wish the Scottish Arbitration law or another national arbitration law
to apply and both parties should look at the alternatives. It would be best if you can
agree this point between you, otherwise each party will have to argue it before the
arbitrator/s who will make the decision. Once this law is decided, I advise both
parties that they should agree on further procedural detail by choosing a set of Rules
and I recommend the UNCITRAL Arbitration Rules 1976 which I attach.
I think this is enough to allow the arbitration to continue at this stage. I recommend to
both parties that they employ experienced professional advisers and/or lawyers to
assist them and I ask both parties to let me know as soon as possible their views on the
points I highlight above.
I also note that all correspondence to me should be to my home address in Aberdeen
and not to Rotterdam as further correspondence in this matter to me at the university
may not be received by me within an appropriate time.
Yours &c
copied to Accra Airways Ltd

Harmony Plc
(&c)
July 17, 2008

(Aberdeen address)
Thank you for your letter and enclosures of June 23,

2008.
Unfortunately, our Mr Carter is still ill but we have had
some discussions with the Chartered Institute of
Arbitrators which have given us confidence in the details
you kindly supplied. In fact, your reputation was highly
praised and as we have no wish to incur unnecessary costs
we write formally to agree to your appointment as “sole
arbitrator”.
As to the second point you raised, the CIArb has advised
that most recent national arbitration laws are fairly
similar. We note that, since our legal advisers are
appointed by our parent corporation in Seattle,
Washington, USA, we would prefer the American Arbitration
Act to apply. If this conflicts with what AAL may
propose, we will abide by your learned decision as to
which law shall apply.
We understand that the Rules you copied to us are good
and we accept your recommendation.
In fact, we have written to AAL about all this as you
suggested but we haven’t heard from them yet. We attach
a copy of our letter to AAL. [not supplied in this scenario.]
Please let us know what we should do next.
Yours respectfully
JOHN TERRAM
PRESIDENT
with copy to Accra Airways Ltd

Sunday Ayinde & Co.

Legal Practitioners, Notary Public (&c)
23 July 2008
(Aberdeeen)
Re: Accra Airways Limited –v– Harmony Plc
We confirm that we represent the Claimant, Accra Airways Limited, in
the above matter. I attach a copy of my letter of appointment.
With reference to your letter of 23 June 2008 we note that we have
received the copy of the Respondent’s letter of 17 July 2008 to you
which included a copy of your letter which we did not receive. We also
did not receive any previous letter from the Respondent – these non-
receipts were possibly because of a lightning strike on our local postal
sorting shed which burnt it down.
We are glad that your appointment has been confirmed by the
Respondent as sole arbitrator in this matter.
We have considered carefully what procedural law should apply and we
note that the Ghanaian law is currently under consideration for
replacement. We humbly suggest to you that, as the performance of the
contract out of which these disputes have arisen was to be in UK, the
law applicable to the procedure of this arbitration should be the British
Arbitration Act. In order not to cause further delay, we too will abide by
your decision on this point if the Respondent does not accede to our
proposal.
We understand that the British arbitration law is quite sufficient for our
arbitration and we therefore respectfully reject the use of the UNCITRAL
Arbitration Rules 1976.
We wish there to be an oral hearing so that our expert who is currently
making his investigations may give evidence. We will also wish to call
witnesses of fact.
Yours sincerely
For: Accra Airways Limited
cc. Harmony Plc

cc. Managing Director, Accra Airways Limited

Leny Buurman
(&c)
14 August 2008
Dear Sirs
Accra Airways Limited –v– Harmony Plc
I acknowledge receipt of letters from Harmony Plc and Accra Airways Limited, dated
17 & 23 July 2008 respectively.
In the light of these letters, I write to confirm my appointment as sole arbitrator in the
above matter and I confirm my address and contact numbers in Aberdeen, as above.
The Claimant has proposed the “British Arbitration Act” to be the procedural law in
this arbitration. The Respondent has proposed the “American Arbitration Act”.
I have not yet researched this point fully. Nonetheless, it is already clear that these
definitions are not precise. The United Kingdom comprises a number of distinct legal
jurisdictions, the main ones being England & Wales, Scotland, and Northern Ireland.
‘America’, if taken as the USA, has both Federal and State arbitration statutes.
In the meantime, so as not to delay this reference any further, I have made my Order
for the next matters in this arbitration for the parties to perform, irrespective of which
procedural law applies, as below.
I shall communicate my decision on the applicable procedural law on or before 1
October 2008.
AND
I NOW DIRECT that
1. The Claimant shall submit to the Respondent and to me its Statement of Claim in
detail with copies of all supporting documents on or before 1 December 2008.
2. The Respondent shall submit its Statement of Defence to the Claimant’s Statement
of Claim in detail with copies of all supporting documents on or before 1 January
2009.
3. The Defence may also include a Statement of Counterclaim or set-off if the
Respondent be so advised;
4. An oral Hearing shall take place in Aberdeen, Scotland on 17, 18 & 19 May 2009.
Yours &c
To:
The Managing Director, Accra Airways Limited, Tamale House, Kotaka International
Airport, Accra, GHANA
The President, Harmony Plc, 1840 West Street, Lossiemouth, Scotland, USA
Ayinde & Co, No.14 Eruba Road, PO Box 523, Accra GHANA

Leny Buurman
(&c)
23 September 2008
Accra Airways Limited –v– Harmony Plc
I refer to my previous letter and Order of 14 August 2008. I now consider the
applicable law for the procedure of this arbitration.
The Claimant is Ghanaian whose arbitration law is historically based on that of
England & Wales. The present law in Ghana is the Arbitration Act 1961 (Act 38)
which is based on recent (but not current) English law.
The Respondent is based in Scotland and is a subsidiary of an American corporation
and has noted a preference for the “American Arbitration Act”. The arbitration law in
USA is complex, with different statutes for domestic and international arbitrations and
some states have specific arbitration statutes despite the 1925 Federal Arbitration Act
and the Uniform Arbitration Code.
In the light of these imprecise proposals and complications and taking note of the
request of both parties that I decide this point,
I NOW DECLARE THAT
In the light of the above with reference to this arbitration
The law of England & Wales in the form of the Arbitration Act 1996 is the law
applicable to this arbitration.
AND
I attach a copy of this Act.
To:
The Managing Director, Accra Airways Limited, Tamale House, Kotaka International
Airport, Accra, GHANA
The President, Harmony Plc, 1840 West Street, Lossiemouth, Scotland, UK
Ayinde & Co, No.14 Eruba Road, PO Box 523, Accra GHANA


AND
IN THE MATTER OF AN ARBITRATION BETWEEN

Claimant
and
Harmony Plc
Respondent
_____________________
STATEMENT OF CLAIM
____________________
1. The Claimant is a Limited Liability Company incorporated under the Laws of the
Republic of Ghana for the purpose of rendering air transport services with its
registered office at Tamale House, Kotaka International Airport, Accra, Ghana.
2. The Respondent is a company incorporated under the Laws of Scotland and carries on
the business of buying, selling, leasing, modifying and overhauling of aircraft and
aircraft engines and parts with its registered office at 1840 West Street, Lossiemouth,
Scotland.
3. The Claimant is the owner of the following aircraft engines:
2 No. ID 1T-3L6LT9, Serial Numbers 303380 and 303378
2 No. ID 2T-95 with S/N 424771 and S/N 301094
4. By an undated “Aircraft Engines Modification/Overhaul Agreement” (hereinafter
referred to as “The Agreement”) executed on the 15th day of January 2007, the
Respondent agreed with the Claimant to use its best endeavours to modify and
overhaul the engines listed in (3) above in accordance with international acceptable
Aviation Industry Standards with lease back arrangements for a period of 12 months.
5. The Claimant avers that the Respondent subcontracted the modification/overhauling
of 2 of the engines to a third party outside the UK which was in direct contravention
of Article 4(A) of the Agreement referred to in (4) above.
6. The Claimant also avers that none of the engines has been returned to it as required
under the Agreement referred to in (4) above.
7. The Respondent is accordingly in breach of the Agreement noted in (4) above.
8. In consequence of these breaches the Claimant has lost the use of its engines as and
from 21 January 2008.
9. Accordingly the Claimant claims:
(a) $500,000.00 as general damages for breach of the contract;
(b) $4,500,000.00 being the value of the engines as at 21 January 2008;
(c) interest; and
(d) its costs of the arbitration.
10. And the Claimant relies on [documents already submitted – pages 11-18 inclusive] in
support.
Sunday Ayinde for Accra Airways Limited 29 November 2008

Harmony Plc
(&c)
January 11, 2009

(&c)
Thank you for your letter and September 23, 2008.
I am glad to report that our Mr Carter is recovering his

health at last. He read your learned decision with
interest and he has dictated the enclosed Statement of
Defence and Counterclaim, indicating the documents we
should attach. I hope this is OK.
I note that you have ordered an oral hearing in May. Is

this like a hearing in court? Will we be able to give
evidence and will we be able to question AAL’s expert and
witnesses?
I apologise if these are simple questions but I don’t

want to disturb Mr Carter’s convalescence any more. I am
assured he will be fit and well by May 1.
Yours respectfully
JOHN TERRAM
PRESIDENT
with copy to Accra Airways Ltd

IN THE MATTER OF AN ARBITRATION UNDER THE ARBITRATION ACT 1996

BETWEEN:
Claimant
and
Harmony Plc
Respondent
_____________________________________________
STATEMENT OF DEFENCE AND COUNTERCLAIM
_____________________________________________
1. The Respondent confirms the names and addresses of the
parties.
2. The Respondent admits the description of the businesses of
the parties.
3. The Respondent admits paragraph 3 of the Statement of Claim.
4. The Respondent admits paragraph 4 of the Statement of Claim
but adds that there were three further relevant agreements
[see the attached Power of Attorney, undated; Memorandum of
Understanding, dated January 22, 2008; and Docket of
Reconciliation, dated February 28, 2008].
5. The Respondent admits the fact in paragraph 5 of the
Statement of Claim but adds that this was necessary under
Article 4 (B) of the Agreement of July 15, 2007 as there was
no proper facility available in the UK to carry out this
work at the time.
6. The Respondent attaches a copy of the relevant UNIDROIT
Section on which it relies.
7. The Respondent therefore denies it has breached the
Agreement between the parties.
8. The Respondent counterclaims that it was unable to get the
two engines out of Belgium as the Claimant was in debt to
Sabena who held these engines as security against this debt.
9. The Respondent accordingly has incurred costs as listed in
the Docket of Reconciliation attached hereto and claims as
follows:
(a) ID2T-95 ENGINES – WORK TO DATE 297,439.76
(b) ID1T-3L6 ENGINES – WORK TO DATE 640,532.72
(c) TRAVEL & ADMINISTRATION CHARGES 446,704.31
(d) INTEREST & ADVANCES 304,703.13
(e) COMMISSION 900,000.00
$2,589,379.92
(f) INTEREST ON THIS SUM
(g) OUR COSTS IN THIS ARBITRATION
10. And we rely on the documents referred to above and on the 2
letters/faxes of February 5, 2008, also attached.
(Signed)
JOHN TERRAM, PRESIDENT, HARMONY PLC January 11, 2009

(Extract)
POWER OF ATTORNEY
GRANTED BY
IN FAVOUR OF
HARMONY PLC.
By this Power of Attorney created this day of 200- WE Accra Airways Limited
of Kotoka International Airport, Accra (hereinafter called the “Donor”)
WHEREAS:
1. The Donor owns the following aircraft engines
2 No. ID 1T-3L6LT9, Serial Numbers 303380 and 303378
2 No. ID 2T-95 with S/N 424771 and S/N 301094.
2. The Donor has agreed to appoint the Donee as its true and lawful attorney for the
purposes of modifying and overhauling the said engines to make them serviceable.
NOW THIS DEED WITNESSES that the said Accra Airways Limited
HEREBY APPOINTS HARMONY PLC. of 1840 West Street, Lossiemouth,
Scotland, UK (hereinafter the “Donee”) attorney for us in our name and on our
behalf to do and execute all or any of the acts and things following, namely:
1. To take possession/delivery of the said engines and to modify and overhaul them
to make them serviceable.
2. The Donee shall use its best endeavours to ensure that the Donor’s engines are
modified/overhauled in accordance with international acceptable aviation industry
standards.
3. The Donee shall be at liberty to subcontract the modification/overhaul of the
Donor’s engines to a third party repair facility in the UK.
…
6. And generally the Donee is required and empowered to do all such lawful acts and
things for the purposes aforesaid as fully and effectively in all respects as the
donor could itself act.
AND IT IS HEREBY DECLARED that this power of attorney shall be irrevocable for
a period of 12 months or for such further term as may be mutually agreed by the
parties.
IN WITNESS whereof the said Donor has executed this Deed and day and year first
above written.
The Common Seal of the Donor was hereunto affixed in the presence of:
(signed) (signed)
DIRECTOR (MANAGING) SECRETARY


MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING dated 22 nd January,

2008 between Accra Airways Limited and Harmony Incorporated held at
Aerocontrol Office, Abidjan International Aeroport, Côte d’Ivoire,
wherein it was agreed as follows:
1. The Parties agree that the existing contract of 19 th January 2007

remains in force and Harmony Plc shall continue with the overhaul of
the engines.
…
11.This Memorandum of Understanding shall form part of the Agreement

of 19th January 2007.
This Memorandum of Understanding is agreed and accepted the date

first above written.
Signed : W O Carter Bayo Ajewole
Name: WILLIAM O CARTER Name: ADEBAYO AJEWOLE
Address: 1840 West Street, Address: Kotoka International

Airport,
Lossiemouth, Scotland Accra, Ghana
(For & on behalf of Harmony Plc) (For & on behalf of Accra Airways Ltd)
Witness: James Clinton Witness: Frances Olagabi
JAMES PR CLINTON FRANCES OLAGABI

DOCKET OF RECONCILIATION BETWEEN ACCRA AIRWAYS LTD. (THE

AIRWAYS) REPRESENTED BY PATRICK OLU AND HARMONY PLC. (THE
COMPANY) REPRESENTED BY JOHN TERRAM AND WILLIAM CARTER IN
SEATTLE WASHINGTON USA ON FEBRUARY 28, 2008.
IN REFERENCE TO:
1) AIRCRAFT ENGINE MODIFICATION/OVERHAUL AGREEMENT OF
JANUARY 15, 2007
2) POWER OF ATTORNEY ALSO DATED JANUARY 15, 2007
3) MEMORANDUM OF UNDERSTANDING DATED 22 JANUARY, 2007
4) THE AIRWAYS FAX OF 5 FEBRUARY 2008
5) THE COMPANY LETTER OF 5 AUGUST 2008
A) THE COMPANY PRESENTED A BILL FOR TWO MILLION FIVE
HUNDRED AND EIGHTY-NINE THOUSAND THREE HUNDRED AND
SEVENTY-NINE DOLLARS AND NINETY-TWO CENTS AS FOLLOWS:
ID2T-95 ENGINES – WORK TO DATE 297,439.76
ID1T-3L6 ENGINES – WORK TO DATE 640,532.72
TRAVEL & ADMINISTRATION CHARGES 446,704.31
INTEREST & ADVANCES 304,703.13
COMMISSION 900,000.00
2,589,379.92
B) THE AIRWAYS SELECTED TO SETTLE THE MATTER AND HAS
OFFERED $500,000.00 IN FULL AND FINAL SETTLEMENT FOR THE
ID1T-3L6 ENGINES.
C) THE COMPANY ACCEPTED THE AIRWAYS OFFER OF $500,000.00
FOR THE SETTLEMENT OF THE ID1T-3L6 ENGINES DEBT PROVIDED
THIS MONEY IS RECEIVED IN THE COMPANY’S BANK ACCOUNT ON
OR BEFORE MARCH 10, 2007 FILING WHICH THE COMPANY WILL
HAVE THE RIGHT TO REVERT TO THE ORIGINAL AMOUNT WHICH
WILL BECOME IMMEDIATELY PAYABLE.
D) THE AIRWAYS APPRECIATES AND AGREES THAT THE COMPANY
HAS THE RIGHT TO RECOVER ITS MONEY WITHOUT RECOURSE TO
THE AIRWAYS IN THE EVENT OF FURTHER BREACH OF THESE
AGREEMENTS.
UPON SETTLEMENT OF THE COMPANY’S BILLS THE AIRWAYS WILL
HAVE THE RIGHT TO THE RELEASE OF ITS TWO ID2T-95 AND TWO
ID1T-3L6 ENGINES.
IN ADDITION THE COMPANY WILL ISSUE A RELEASE DISCHARGING
THE AIRWAYS OF ALL LIABILITIES TO THE COMPANY.
(signed) (signed)
PATRICK OLU JOHN TERRAM, PRESIDENT
FOR ACCRA AIRWAYS LTD. FOR HARMONY PLC.

UNIDROIT Principles of International Commercial Contracts 1994
CHAPTER 6 – PERFORMANCE
Section 2 – Hardship
Article 6.2.1 – Contract to be Observed
Where the performance of a contract becomes more onerous for one of

the parties, that party is nevertheless bound to perform its obligations
subject to the following provisions on hardship.
Article 6.2.2 – Definition of Hardship
There is hardship where the occurrence of events fundamentally alters

the equilibrium of the contract either because the cost of a party’s
performance has increased or because the value of the performance a
party receives has diminished, and
(a) the events occur or become known to the disadvantaged party after the
conclusion of the contract;
(b) the events could not reasonably have been taken into account by the
disadvantaged party at the time of the conclusion of the contract;
(c) the events are beyond the control of the disadvantaged party; and
(d) the risk of the events was not assumed by the disadvantaged party.
Article 6.2.3 – Effects of Hardship
(1) In case of hardship the disadvantaged party is entitled to request

renegotiations. The request shall be made without undue delay and
shall indicate the grounds on which it is based.
(2) The request for renegotiation does not itself entitle the disadvantaged
party to withhold performance.
(3) Upon failure to reach agreement within a reasonable time either party
may resort to the court.
(4) If the court finds hardship it may, if reasonable,
(a) terminate the contract at a date and on terms to be fixed; or
(b) adapt the contract with a view to restoring its equilibrium.


Tamale House
Accra
GHANA
February 5, 2008
Harmony Plc.
1840 West Street
Lossiemouth
Scotland
UK SENT BY FAX
Dear Sirs
RE: DELIVERY OF AIRCRAFT ENGINES FOR MODIFICATION /

OVERHAUL
Please refer to the Agreement executed on January 19 2007 between us and the
various correspondences thereafter on this subject.
In furtherance of the Agreement referred to above, we delivered to you two (2) ID2T-
95 and two (2) ID1T-3L6 engines in January 2006 for modification/overhaul. These
engines are still in your possession, in unserviceable condition.
Please refer to the telephone conversation of yesterday between our Managing

Director, Mr BM Zukra, and your company attorney, William O Carter whereby it
was agreed as follows:
(i) that the officials of the Parties will meet immediately to reconcile and arrive at
an agreeable amount spent to date by you on the two (2) ID1T-3L6 engines
presently with Sabena in Brussels, Belgium.
(ii) that after reconciliation, we shall pay you the agreed amount.
(iii) that we shall immediately take possession of the two (2) ID1T-3L6 engines “as
is and where is”.
(iv) that with respect to the two (2) ID2T-95 engines in the UK, you shall conclude
work on them within 90 (ninety) days hereafter and return same to us in Accra.
We look forward to your positive response.
Yours faithfully
OLJU H OMAN
For: MANAGING DIRECTOR/CHIEF EXECUTIVE

Harmony Plc
Aviation Support
1840 West Street
Lossiemouth
Scotland
UK
February 5, 2008
The Managing Director
Accra Airways Ltd
Tamale House
Accra
GHANA
Re: Delivery of Aircraft Engines for

modification/overhaul
Dear Sir
1) In response to your fax of today: Yes, we are

expecting your representative to arrive in our office at
any time from now to effect global settlement of our
differences in our relationship, account reconciliation
and payment.
2) Unless this is done, we do not have any ground to stop

our legal action against Sabena in Belgium for the
release of the ID1T-3L6 engines to us. Your telephone
conversation with our Mr Carter does not in effect
constitute an agreement to lease the engines at Sabena.
3) Your 4 engines remain unserviceable because of your

direct interference with the maintenance facilities here
so they were sent out to others. Your fax should have
noted this.
Please confirm the name of your representative to the

meeting and the date and time of his arrival in Seattle.
Best regards


AND IN AN ARBITRATION BETWEEN
ACCRA AIRWAYS LIMITED (Accra, Ghana)

Claimant
and
HARMONY PLC (Lossiemouth, Scotland)

Respondent
Order No. 2
I confirm receipt of the Claimant’s Statement of Claim, dated 29 November 2008, and
the Respondent’s Statement of Defence and Counterclaim, dated 11 January 2009
AND
I now order and direct
1. That the sequence at the oral hearing on 17, 18 & 19 May 2009 shall be:
(a) brief opening statement by Claimant;
(b) brief opening statement by Respondent;
(c) examination of witnesses, if any, shall be
i. first for the Claimant
ii. second for the Respondent;
(d) examination of each witness shall be
i. first by the party calling the witness
ii. then by the opposing party
iii. finally by the arbitrator;
(e) calling of witnesses shall be
i. witness of fact first
ii. expert witnesses after witnesses of fact;
(f) closing statement of Respondent;
(g) closing statement of Claimant;
2. All evidence shall be as follows:
(a) all evidence shall be in the English language, any translation being the
responsibility of the party bringing such evidence;
(b) each party may call up to three witnesses in total;
3. Hearing times will be generally 10h30 to 13h00 and 14h30 to 17h00;
4. The Claimant shall ensure that a tape recording is made of the entire hearing,
copies to be made available to the Respondent and to me;
5. A party may apply to me for amendment or addition to these Directions; and
6. The costs of this Order to be costs in the arbitration.
Leny Buurman
The Hague
2 February 2009

Arbitration Award Writing Topic 5 : Final Points
Topic 5 : Final Points
Topic Preview
This Topic concludes ‘How to Write an Award’, with sections on :
– Cause of action – generally
– Cause of action – in arbitration
– ILA Resolution No. 6/2008
– IBA Guidelines
– IBA Rules of Ethics for International Arbitrators
THE ACTIVITY CONCLUDES THE INTERNATIONAL
EXAMINATION-TYPE SITUATION AND REQUIRES STUDENTS TO
WRITE AN AWARD ON IT.
STUDENTS COMPLETING THIS ACTIVITY WILL BE SENT A

‘MODEL ANSWER’ FOR COMPARISON & GENERAL
GUIDANCE.
Topic Content
1. Cause of action – generally

The cause of action is the heart of a complaint, which is the pleading that
initiates a reference to arbitration. Without an adequately stated cause of
action a claimant’s case is liable to be dismissed at the outset. It is not
sufficient merely to state that certain events occurred that entitle a
claimant to relief. All the elements of each cause of action must be
detailed in the complaint. The claims must be supported by the facts, the
law, and a conclusion that flows from the application of the law to those
facts.
The cause of action is often stated in the form of a syllogism, a form of
deductive reasoning that begins with a major premiss (the applicable Rule
of Law), proceeds to a minor premiss (the facts that gave rise to the
claim), and ends with a conclusion.
In a cause of action for battery, the rule of law is that any
intentional, unpermitted act that causes a harmful or offensive
touching of another is a battery. This is the major premiss and is
stated first. Supporting facts, constituting the minor premiss,
appear after the rule of law.

For example, a statement of facts for a case of battery might be

‘The plaintiff, while walking through ABC Store on the afternoon of
17 March 2016, was tackled by the defendant, a security guard for
the store, who knocked the plaintiff to the floor and held her there
by kneeling on her back and holding her arms behind her, while
screaming in her ear to open her shopping bag. These actions
caused the plaintiff to suffer injuries to her head, chest, shoulders,
neck, and back.’
The cause of action concludes with a statement that the defendant
is responsible for the plaintiff's injuries and that the plaintiff is
entitled to compensation from the defendant.
The facts or circumstances that entitle a person to seek judicial relief may
create more than one cause of action.
For example, in the preceding scenario, the plaintiff might assert
claims for assault, battery, intentional infliction of emotional
distress, and violation of Civil Rights. She might also bring claims
for negligent hiring (if the guard had a history of violent behaviour
which the store failed to discover) or negligent supervision. (When
damages are caused by an employee it is common to sue both the
employee and the employer.)
All these causes of action arise from the same set of facts and
circumstances but are supported by different rules of law and
constitute separate claims for relief.
A cause of action can arise from :
 an act,
 a failure to perform a legal obligation,
 a breach of duty, or
 a violation or invasion of a right.
The importance of the act, failure, breach, or violation lies in its legal
effect or characterisation and in how the facts and circumstances
(considered as a whole) relate to the applicable law.
A set of facts may have no legal effect in one situation, whereas the same
or similar facts may have significant legal implications in another situation.
For example, tackling a shoplifting suspect who is brandishing a gun
is a legitimate action by a security guard and probably would not
support a claim for relief if the suspect were injured in the fracas.
On the other hand, tackling a shopper who merely acts in a
suspicious manner while carrying a shopping bag is a questionable
exercise of a guard's duty and may well give rise to justiciable
causes of action.

2. Cause of action – in arbitration

A cause of action is based on the facts or combination of facts out of which
arise a right to sue. It is sometimes called a ‘claim’. These facts are those
which are material to be proved to entitle the claimant to succeed, and
which the defendant/respondent has a right to traverse.
It may also refer to the legal theory upon which a claimant brings suit,
such as for breach of contract and there are a number of specific causes of
action, including :
 contract-based actions ;
 statutory causes of action ;
 torts such as invasion of privacy, fraud, negligence ; and
 suits in equity such as unjust enrichment and quantum meruit.
The claims in a cause of action must be supported by the facts, the law,
and a conclusion that flows from the application of the law to those facts.
To win a given type of case, a claimant must prove what are called the
‘discrete elements’ of that cause of action, all of which must be proved to
present a winning case.
These ‘discrete elements’ are the component parts of a legal claim or
cause of action. To win a case, a claimant must prove every element of a
legal claim.
For example, here are the elements of a breach of contract claim :
1. there was a valid contract ;
2. the Claimant performed as specified by the contract ;
3. the Respondent failed to perform as specified by the contract ; and
4. the Claimant suffered an economic loss as a result of the
Respondent's breach of contract.
For example, for a claim of negligence, the elements are :
1. the (existence of a) duty,
2. breach (of that duty),
3. proximate cause (by that breach), and
4. consequent damages.
If a complaint does not allege facts sufficient to support every element of
a claim, the tribunal, upon motion by the opposing party, may dismiss the
complaint for failure to state a claim for which relief can be granted.
To counter a cause of action the defendant/respondent must file a specific
Defence to the complaint in which the claims can be :
1. admitted,
2. denied, or
3. alleged to be insufficient information to form a response.

Such a Defence may also contain affirmative Defences.

Most defences must be raised at the first possible opportunity, either in
the Defence or by motion, or are deemed waived. A few defences, in
particular a tribunal’s lack of subject matter jurisdiction, need not be
pleaded and may be raised at any time.
There is no cause of action until the claimant can legally sue, therefore the
statute of limitations does not run from the making of a promise, if it were
to perform something at a future time, but only from the expiration of that
time. However, when an obligor promises to pay on demand, or generally
without specifying a date, he may be sued immediately, and then the
cause of action has accrued.
3. ILA Resolution No. 6/2008
INTERNATIONAL COMMERCIAL ARBITRATION
The 73rd Conference of the International Law Association held in Rio de

Janeiro, Brazil, 17-21August 2008 :
HAVING CONSIDERED the Report on Ascertaining the Contents of the
Applicable Law in International Commercial Arbitration by the Committee
on International Commercial Arbitration ;
RECOGNISING the need for guidance and the development of best
practices for parties, counsel and arbitrators in relation to ascertaining the
contents of the applicable law in international commercial arbitration ;
ADOPTS the Recommendations annexed to this Resolution ;
COMMENDS the Recommendations to arbitral tribunals, with a view to
facilitating uniformity and consistency in ascertaining the contents of the
applicable law in international commercial arbitration ;
REQUESTS the Committee and others to encourage the application of the
Recommendations within the arbitral community ; and
RECOMMENDS that the Executive Council renews the mandate of the
Committee for a period of four years to study and report on the topic of
confidentiality in international commercial arbitration.
Annex
INTERNATIONAL LAW ASSOCIATION RECOMMENDATIONS ON
ASCERTAINING THE CONTENTS OF THE APPLICABLE LAW IN
INTERNATIONAL COMMERCIAL ARBITRATION
General considerations
1. At any time in the proceedings that a question requiring the application
of a rule of law (including a question of jurisdiction, procedure, merits or
conflicts of laws) arises, arbitrators should identify the potentially
applicable laws and rules and ascertain their contents insofar as it is
necessary to do so to decide the dispute.

2. In ascertaining the contents of applicable law and rules, arbitrators

should respect due process and public policy, proceed in a manner that is
fair to the parties, deliver an award within the submission to arbitration
and avoid bias or appearance of bias.
Acquiring information
3. When it appears to the arbitrators that the contents of applicable law
might significantly affect the outcome of the case, arbitrators should
promptly raise that topic with the parties and establish appropriate
procedures as to how the contents of the law will be ascertained (in
submissions with materials attached, through experts, witnesses or
otherwise).
4. Arbitrators attempting to ascertain the contents of applicable law should
bear in mind that the rules governing the ascertainment of the contents of
law by national courts are not necessarily suitable for arbitration, given
the fundamental differences between international arbitration and
litigation before national courts. In particular, arbitrators should not rely
on unexpressed presumptions as to the contents of the applicable law,
including any presumption that it is the same as the law best known to the
tribunal or to any of its members, or even that is the same as the law of
the seat of the arbitration.
Interaction with parties
5. Arbitrators should primarily receive information about the contents of
the applicable law from the parties.
6. In general, and subject to Recommendation 13, arbitrators should not
introduce legal issues – propositions of law that may bear on the outcome
of the dispute – that the parties have not raised.
7. Arbitrators are not confined to the parties’ submissions about the
contents of applicable law. Subject to Recommendation 8, arbitrators may
question the parties about legal issues the parties have raised and about
their submissions and evidence on the contents of the applicable law, may
review sources not invoked by the parties relating to those legal issues
and may, in a transparent manner rely, on their own knowledge as to the
applicable law as it relates to those legal issues.
8. Before reaching their conclusions and rendering a decision or an award,
arbitrators should give parties a reasonable opportunity to be heard on
legal issues that may be relevant to the disposition of the case. They
should not give decisions that might reasonably be expected to surprise
the parties, or any of them, or that are based on legal issues not raised by
or with the parties.
Making use of information about law’s content
9. In ascertaining the contents of a potentially applicable law or rule,
arbitrators may consider and give appropriate weight to any reliable
source, including statutes, case law, submissions of the parties’ advocates,
opinions and cross-examination of experts, scholarly writings and the like.
10. If arbitrators intend to rely on sources not invoked by the parties, they
should bring those sources to the attention of the parties and invite their

comments, at least if those sources go meaningfully beyond the sources

the parties have already invoked and might significantly affect the
outcome of the case. Arbitrators may rely on such additional sources
without further notice to the parties if those sources merely corroborate or
reinforce other sources already addressed by the parties.
11. If in the course of deliberations arbitrators consider that further
information about the contents of applicable law is necessary to the
disposition of the case, they should consider reopening the proceedings to
enable the parties to make further submissions on the open legal issues,
but only to the extent necessary to address the open legal issues and
taking into account considerations of relevance, time and cost.
12. In applying the rules of the applicable law, arbitrators should give due
regard to available information about the application of the rules in the
jurisdiction from which the rules emanate.
Special circumstances
13. In disputes implicating rules of public policy or other rules from which
the parties may not derogate, arbitrators may be justified in taking
measures appropriate to determine the applicability and contents of such
rules, including by making independent research, raising with the parties
new issues (whether legal or factual), and giving appropriate instructions
or ordering appropriate measures insofar as they consider this necessary
to abide by those rules or to protect against challenges to the award.
14. In applying the foregoing Recommendations, arbitrators may take
account of the nature of the proceedings, in particular regarding default
and expedited interim relief proceedings, and may take a more active role
than might otherwise be the case in questioning legal submissions.
15. If after diligent effort consistent with these Recommendations the
contents of the applicable law cannot be ascertained, arbitrators may
apply whatever law or rules they consider appropriate on a reasoned
basis, after giving the parties notice and a reasonable opportunity to be
heard.
Rio de Janeiro, 21 August 2008
4. IBA Guidelines
The International Bar Association (IBA) was established in 1947 and is the
world's leading organisation of international legal practitioners, bar
associations and law societies.
The Association has a membership of over 80,000 individual lawyers and

more than 190 bar associations and law societies spanning all continents.
It has considerable experience in providing assistance to the global legal
community and is a major influence in the development of international
law reform and shaping the future of the legal profession throughout the
world.

Its Dispute Resolution Section has provided many useful guidelines for
international arbitration. These are freely available from its website:
www.ibanet.org.
They are all named ‘Guidelines’ except one – the guideline on taking
evidence which are called ‘Rules’ though, however they are named, they
are all ‘guidelines’, at least until they become rules in an arbitration by
adoption by agreement. They are :
Guidelines for Drafting International Arbitration Clauses (2010)
Rules on the taking of Evidence in International Arbitration (2010)
Guidelines on Party Representation in International Arbitration

(2014)
Guidelines on Conflicts of Interest in International Arbitration

(2014)
You are recommended to download these and get to know them.
The IBA has also published a short guide on ethics for arbitrators,
unchanged since 2009. It nonetheless covers many of the ethical points
presented to you in the previous Module and in this Course and, in
reproducing it here, you are strongly recommended to take note of all it
states as both in its address to arbitrators but also in a wider context as
applying to the arbitral process generally and all its participants.
5. IBA Rules of Ethics for International Arbitrators

(April 2009)
Introductory Note
International arbitrators should be impartial, independent, competent,

diligent and discreet. These rules seek to establish the manner in which
these abstract qualities may be assessed in practice. Rather than rigid
rules, they reflect internationally acceptable guidelines developed by
practising lawyers from all continents. They will attain their objectives only
if they are applied in good faith.
The rules cannot be directly binding either on arbitrators, or on the parties

themselves, unless they are adopted by agreement. Whilst the
International Bar Association hopes that they will be taken into account in
the context of challenges to arbitrators, it is emphasised that these
guidelines are not intended to create grounds for the setting aside of
awards by national courts.
If parties wish to adopt the rules they may add the following to their
arbitration clause or arbitration agreement :

'The parties agree that the Rules of Ethics for International

Arbitrators established by the International Bar Association, in force
at the date of commencement of any arbitration under this clause,
shall be applicable to the arbitrators appointed in respect of such
arbitration.'
The International Bar Association takes the position that (whatever may
be the case in domestic arbitration) international arbitrators should in
principle be granted immunity from suit under national laws, except in
extreme cases of wilful or reckless disregard of their legal obligations.
Accordingly, the International Bar Association wishes to make it clear that
it is not the intention of these rules to create opportunities for aggrieved
parties to sue international arbitrators in national courts. The normal
sanction for breach of an ethical duty is removal from office, with
consequent loss of entitlement to remuneration. The International Bar
Association also emphasises that these rules do not affect, and are
intended to be consistent with, the International Code of Ethics for
lawyers, adopted at Oslo on 25 July 1956, and amended by the general
Meeting of The International Bar Association at Mexico on 24 July 1964.
1 Fundamental Rules
Arbitrators shall proceed diligently and efficiently to provide the parties

with a just and effective resolution of their disputes, and shall be and shall
remain free from bias.
2 Acceptance of Appointment
2.1 A prospective arbitrator shall accept an appointment only if he is fully

satisfied that he is able to discharge his duties without bias.
2.2 A prospective arbitrator shall accept an appointment only if he is fully

satisfied that he is competent to determine the issues in dispute, and has
an adequate knowledge of the language of the arbitration.
2.3 A prospective arbitrator should accept an appointment only if he is

able to give to the arbitration the time and attention which the parties are
reasonably entitled to expect.
2.4 It is inappropriate to contact parties in order to solicit appointment as

arbitrator.
3 Elements of Bias
3.1 The criteria for assessing questions relating to bias are impartiality
and independence. Partiality arises when an arbitrator favours one of the
parties, or where he is prejudiced in relation to the subject-matter of the
dispute. Dependence arises from relationships between an arbitrator and
one of the parties, or with someone closely connected with one of the
parties.
3.2 Facts which might lead a reasonable person, not knowing the
arbitrator's true state of mind, to consider that he is dependent on a party

create an appearance of bias. The same is true if an arbitrator has a

material interest in the outcome of the dispute, or if he has already taken
a position in relation to it. The appearance of bias is best overcome by full
disclosure as described in Article 4 below.
3.3 Any current direct or indirect business relationship between an

arbitrator and a party, or with a person who is known to be a potentially
important witness, will normally give rise to justifiable doubts as to a
prospective arbitrator's impartiality or independence. He should decline to
accept an appointment in such circumstances unless the parties agree in
writing that he may proceed. Examples of indirect relationships are where
a member of the prospective arbitrator's family, his firm, or any business
partner has a business relationship with one of the parties.
3.4 Past business relationships will not operate as an absolute bar to

acceptance of appointment, unless they are of such magnitude or nature
as to be likely to affect a prospective arbitrator's judgment.
3.5 Continuous and substantial social or professional relationships

between a prospective arbitrator and a party, or with a person who is
known to be a potentially important witness in the arbitration, will
normally give rise to justifiable doubts as to the impartiality or
independence of a prospective arbitrator.
4 Duty of Disclosure
4.1 A prospective arbitrator should disclose all facts or circumstances that

may give rise to justifiable doubts as to his impartiality or independence.
Failure to make such disclosure creates an appearance of bias, and may of
itself be a ground for disqualification even though the non-disclosed facts
or circumstances would not of themselves justify disqualification.
4.2 A prospective arbitrator should disclose :
(a) any past or present business relationship, whether direct or indirect as

illustrated in Article 3.3, including prior appointment as arbitrator, with
any party to the dispute, or any representative of a party, or any person
known to be a potentially important witness in the arbitration. With regard
to present relationships, the duty of disclosure applies irrespective of their
magnitude, but with regard to past relationships only if they were of more
than a trivial nature in relation to the arbitrator's professional or business
affairs. Non-disclosure of an indirect relationship unknown to a prospective
arbitrator will not be a ground for disqualification unless it could have been
ascertained by making reasonable enquiries ;
(b) the nature and duration of any substantial social relationships with any
party or person known to be likely to be an important witness in the
arbitration ;
(c) the nature of any previous relationship with any fellow arbitrator
(including prior joint service as an arbitrator) ;
(d) the extent of any prior knowledge he may have of the dispute ;

(e) the extent of any commitments which may affect his availability to
perform his duties as arbitrator as may be reasonably anticipated.
4.3 The duty of disclosure continues throughout the arbitral proceedings

as regards new facts or circumstances.
4.4 Disclosure should be made in writing and communicated to all parties

and arbitrators. When an arbitrator has been appointed, any previous
disclosure made to the parties should be communicated to the other
arbitrators.
5 Communications with Parties
5.1 When approached with a view to appointment, a prospective arbitrator

should make sufficient enquiries in order to inform himself whether there
may be any justifiable doubts regarding his impartiality or independence;
whether he is competent to determine the issues in dispute; and whether
he is able to give the arbitration the time and attention required. He may
also respond to enquiries from those approaching him, providing that such
enquiries are designed to determine his suitability and availability for the
appointment and provided that the merits of the case are not discussed.
In the event that a prospective sole arbitrator or presiding arbitrator is
approached by one party alone, or by one arbitrator chosen unilaterally by
a party (a 'party-nominated' arbitrator), he should ascertain that the other
party or parties, or the other arbitrator, has consented to the manner in
which he has been approached. In such circumstances he should, in
writing or orally, inform the other party or parties, or the other arbitrator,
of the substance of the conversation.
5.2 If a party-nominated arbitrator is required to participate in the

selection of a third or presiding arbitrator, it is acceptable for him
(although he is not so required) to obtain the views of the party who
nominated him as to the acceptability of candidates being considered.
5.3 Throughout the arbitral proceedings, an arbitrator should avoid any

unilateral communications regarding the case with any party, or its
representatives. If such communication should occur, the arbitrator
should inform the other party or parties and arbitrators of its substance.
5.4 If any arbitrator becomes aware that a fellow arbitrator has been in
improper communication with a party, he may inform the remaining
arbitrators and they should together determine what action should be
taken. Normally, the appropriate initial course of action is for the
offending arbitrator to be requested to refrain from making any further
improper communications with the party. Where the offending arbitrator
fails or refuses to refrain from improper communications, the remaining
arbitrators may inform the innocent party in order that he may consider
what action he should take. An arbitrator may act unilaterally to inform a
party of the conduct of another arbitrator in order to allow the said party
to consider a challenge of the offending arbitrator only in extreme
circumstances, and after communicating his intention to his fellow
arbitrators in writing.

5.5 No arbitrator should accept any gift or substantial hospitality, directly

or indirectly, from any party to the arbitration. Sole arbitrators and
presiding arbitrators should be particularly meticulous in avoiding
significant social or professional contacts with any party to the arbitration
other than in the presence of the other parties.
6 Fees
Unless the parties agree otherwise or a party defaults, an arbitrator shall

make no unilateral arrangements for fees or expenses.
7 Duty of Diligence
All arbitrators should devote such time and attention as the parties may
reasonably require having regard to all the circumstances of the case, and
shall do their best to conduct the arbitration in such manner that costs do
not rise to an unreasonable proportion of the interests at stake.
8 Involvement in Settlement Proposals
Where the parties have so requested, or consented to a suggestion to this

effect by the arbitral tribunal, the tribunal as a whole (or the presiding
arbitrator where appropriate), may make proposals for settlement to both
parties simultaneously, and preferably in the presence of each other.
Although any procedure is possible with the agreement of the parties, the
arbitral tribunal should point out to the parties that it is undesirable that
any arbitrator should discuss settlement terms with a party in the absence
of the other parties since this will normally have the result that any
arbitrator involved in such discussions will become disqualified from any
future participation in the arbitration.
9 Confidentiality of the Deliberations
The deliberations of the arbitral tribunal, and the contents of the award
itself, remain confidential in perpetuity unless the parties release the
arbitrators from this obligation. An arbitrator should not participate in, or
give any information for the purpose of assistance in, any proceedings to
consider the award unless, exceptionally, he considers it his duty to
disclose any material misconduct or fraud on the part of his fellow
arbitrators.

Topic Activities
Activity 1 – Suggest maximum 4 hours actual time (because only a 4-hour

period is available in the set examination period)
DO NOT LOOK AT THE FOLLOWING PAGES UNTIL AFTER YOU HAVE

COMPLETED THE ACTIVITY IN TOPIC 3 – THESE ACTIVITIES ARE
DELIBERATELY ARRANGED SO THAT YOU WILL GAIN MAXIMUM
BENEFIT FROM DOING THEM AS SET AND IN ORDER which is the
same as in the Award Writing Examination.
If you do look at the following pages before doing the Topic 4 Activity, you
will lose all the advantages you would gain from having done it on its own.
Following are the remainder of the papers which form part of the Award
Writing exercise which you started in Topic 4 and should complete in this
Activity.
You are now ‘in the examination room’ and you are required within a 4-
hour period to write a final reasoned Award on this problem.
Don’t forget; this examination is ‘open-book’ – you may use any

documents, notes and books you wish BUT remember that your Award will
be checked in every respect for any plagiarism. You should have the
recitals and pre-prepared phrases &c ready for inclusion in your
answer.
This Activity requires you initially to complete your identification of the
issues in dispute, allocate the evidence to them and make your
findings of fact on them from the evidence.
You should do this in the examination as preparation for writing out
your award. This exercise may (in the actual examination if you
wish) be included with your award but it is likely that the examiner
will take much more notice of your Award itself. After all, that is
what you are meant to produce in this examination.
With this task complete, you then have to write out your Award, the final
(and, quite possibly, the only) visible result of the Activities of these
Topics.
STUDENTS ARE REMINDED THAT, ON COMPLETING THIS ACTIVITY

THEY WILL BE SENT A ‘MODEL ANSWER’ FOR COMPARISON &
GENERAL GUIDANCE.
…………………

THE HEARING
(Extracts from Arbitrator’s notes & from transcript of the tape

recording)
Day One
10h30
Mr Ayinde (for Ct) asked to clarify a point in the SoC (the date of
the Agreement ‘correct as 15 January 2007’) and one in the SoD
(that the undated PoA submitted by Rt was also 15 January 2007).
Mr Carter (for Rt) gave a longwinded discourse on the need for

accuracy for certainty, castigated Ct for the date confusion and
omissions in the typed text of both documents, eventually agreeing
to both points.
He then pointed out that the MoU had been drawn up in Abidjan and
was therefore subject to the laws of Ivory Coast – was Mr Ajewole
competent under those laws to execute this for C t? Followed
another long presentation on who had/not capacity under Côte
d’Ivoire Codes. Proposed that this be avoided for uncertainty.
Mr A affirmed that Mr Ajewole had capacity but suggested this point

irrelevant.
12h45
Mr C started to elaborate on the interpretation of the UNIDROIT

hardship provisions. Stopped him as this was for later, noting my
Order of 2 February. Said I’d rule on the application re MoU lunch.

14h30
Ruled in favour of Ct, that Rt had wasted half-a day and was liable in
costs in any event. ***[Must remember to give reasons for this in
my award.]
14h45
Claimant’s Opening (Mr A)
Submission as SoC.
Will call Mr Oman and Dr Rodal Agugic, expert, to give evidence.
Main contentions: that work patently not done & blatant breach in
sending 2 engines outside UK.
MoU to renew therefore invalid/inoperative.
Will show that Docket of Reconciliation invalid.
Claim fully capable of substantiation. Engines no longer available,

therefore agreed value of $4,500,000.00 to apply. $500,000.00
nominal general damages for all the trouble caused.
Counterclaim is Rt’s own responsibility.
As Ct not in breach, Rt not entitled to invoke lien/mortgage clause.
16h00
Respondent’s Opening (Mr C)
As SoD.
Main contention: hardship coupled with ‘time of essence’ required

quick decision. This led to need to send engines to Belgium.

Unable to contact Accra to renegotiate due to telephone connection

failure to Ghana.
This situation compounded by Sabena’s refusal to do the work or

even release the engines since AAL in debt to them. It took a court
order to get release finally with much time lost.
Will call Mr Terram as witness who would be his own expert.
17h00
(End of day one)
Day Two
10h30
Evidence of Al. Olju H Om (AAL Company secretary)
Questioned by Mr A
1. Asked if he may affirm (no objections) and then affirmed that

his evidence would be truthful and full.
2. Chartered Secretary, lawyer by profession; AAL employee

since 1991. Company Secretary since 2006.
3. Worked under Mr Zukra as Managing Director until he left in

February 2008.
4. Worked under Mr Ajewole since February 2008.

5. Gave long account of operation of AAL & degrees of control

under successive government and decrees. [Seems to know
his stuff and how to keep out of trouble!]
6. Could not say anything about technical matters though he had

visited Harmony’s premises in Lossiemouth once in mid-2007
and thought it was chaotic. [Mr C objected to this opinion.
Said I would give this evidence such weight &c as I consider
appropriate, noting the relevant section of the Act – check
this!]
7. Identified and verified originals of documents attached to SoC

first to Mr C (no comment) and I then formally received them.
11h30
Questioned by Mr C
1. Admitted there had been a scandal in January 2008 which led
to Mr Nigra’s dismissal. [Mr C showed, to Mr A (no comment)
and then me, official Ghanaian Department of Transport
documents, dated 22 February 2008, and newspaper cuttings,
dated 24 February 2008, in support.]
2. Confirmed that Mrs Olagabi had been dismissed also on 23

February 2008.
3. Stated Mr Olu [signatory on DoR] had been Mr Zukra’s

assistant but had no standing in AAL after 23 February 2008.
Olu had been dismissed along with all Mr Zukra’s immediate
staff on 22 February 2008.

4. Said the meeting on 27 March 2008 was at cross purposes.

Rt was fixated on the DoR which C t had never seen. The R t
didn’t seem to want to listen or discuss the matter; just kept
on about this DoR.
5. Denied that dismissal of Mr Zukra and staff as Managing

Director was ploy to negate all contracts including this one.
Pointed out the corruption trial since then where Mr Zukra
disgraced though in exile.
6. Vehemently denied he was covering up for AAL. [Mr C

strongly cautioned for this allegation. Told him he wasn’t in
court in Seattle.]
Mr C noted he had no further question for Mr Oman. I did not

question him.
14h30
Evidence of Dr Rodal Agugic (Expert Aeronautics Engineer)
Mr A asked if witness may take oath on Bible. No objection from

Mr C. Swore witness in.
Questioned by Mr A
1. Doctorate in aeronautics engineering, Utrecht University 1992.
3 years with Boeing in Seattle, then 8 years with KLM.
Independent consultant since 2003.
2. Law degree 1997 University of California, Berkeley.
3. Has undertaken investigations for many airlines since 2003.
4. Asked by AAL to look at Harmony when visiting Scotland on

vacation in March 2008.

5. Had visited Rt’s premises in Lossiemouth on 21 March 2008.

Saw parts ‘all over the place’. Didn’t seem to be in any order.
Some were rusted. Oil spillages.
6. Overall opinion: that premises were unsuitable for the work

required. General operation of premises indicative of poor
approach generally. [Objection by Mr C. I noted that he was
witness of opinion and I would give his evidence such weight
&c.]
15h00
Questioned by Mr C
1. Agreed he had not introduced himself to Harmony on 21
March. Disagreed this was trespass as the gate had been
open to the street and no-one had challenged him as he
walked through the workshop. Added that he hadn’t seen
anyone actually working though mid-morning. [Mr C stopped
him and objected to this unsolicited evidence. Said I would
consider it as before.]
2. Admitted he only saw Rt’s premises. Had no knowledge or

sight of any other premises where subcontract work might
have been carried out.
3. Admitted there had been a lot of work on such engines

throughout UK following the scare about them in early
February 2006.
4. Denied that this meant that there were no suitable

subcontractors in UK available to do this work until September
2007; at latest only until April 2007.

5. Admitted he had contacted Sabena in Brussels. Admitted he

had not been asked to do this by AAL or Harmony. Admitted
he had seen the ordonnance (decision) of the Vice-Président
of the Tribunal de Commerce de Bruxelles dated 15 February
2008 that Sabena release the 2 engines ‘within 24 hours’ to
Harmony. [Copy of the ordonnance submitted – queried by Mr
A. Fully notarised and clearly in public domain. No objection
from Mr A & I accepted it.]
6. Agreed that this probably confirmed that the engines had

been in Sabena’s possession at the time and that Sabena
refused until then to release them.
16h30
My questions
1. Agreed that the ordonnance also established that Rt was, in
the eyes of the Tribunal de Commerce in Brussels, the rightful
possessor of the 2 engines.
2. Stated (unasked) this confirmed that Rt had probably

produced full documentation to the Tribunal that these
engines were fully under its control and had voluntarily sent
them to Sabena in Belgium. [Mr C objected again. Same
response.]
End of Ct’s evidence.
17h00
(End of day two)

Day Three
10h30
Evidence of Mr Terram
Questioned by Mr C
1. President of Rt. Qualified senior aircraft engine technician
(recognised by MIT) 1990. 5 years Rolls-Royce. Set up
Harmony 1997.
2. Had trouble with this contract from the start. Specification

vague – too global. Thought that this meant it had to be
interpreted. Had applied this attitude before in similar
circumstances and did what he thought best.
3. Received all 4 engines at end of January 2007. They were in

a bad state; much worse than he had thought when he saw
them in Accra earlier.
4. Sent 2 off in February 2007 to subcontractor in Aberdeen to

be completed by end February 2008.
5. Couldn’t get anyone in UK to do other 2 because of the scare

about them which tied up all available qualified technicians in
UK. Tried to telephone AAL but couldn’t get through. Decided
more important to get work done than keep to strict term of
contract. ‘Interpretation of spirit of contract’ – hardship and
time of essence.
6. Sent these 2 engines in late March 2007 to Sabena who

proposed a quick turnaround (“October 2007”) at a good
price. Didn’t suspect anything behind this.

7. It was a very busy time for Harmony. Whenever he could,

telephoned Sabena who were evasive.
8. Eventually took Sabena to court where they pleaded to keep

engines against debt owed them by AAL. Result a complete
justification for Harmony.
9. Brought these 2 engines back to Lossiemouth end February

2008 and subcontracted to same subcontractor in Aberdeen,
now able to do this work.
10. Much expense involved in trying to perform contract – invokes

hardship clause.
11. Vouched for expenses as per SoD counterclaim.
12h30
Questioned by Mr A
1. Agreed [reluctantly] he had been with Boeing 1994-95.
Denied he was fired for incompetence; it was a ‘personality
clash’.
2. Admitted he had telephoned AAL only twice on one day when

he had difficulty in finding UK technicians to work on 2
engines that went to Belgium. Admitted he knew connections
with Ghana frequently broken.
3. Agreed he might have tried harder to contact AAL but pleaded

extremely busy time and anxious to get the work done.
4. Admitted knowledge of change of management in AAL ‘around

end of February 2008’ but still accepted Mr Olu at the time as

valid representative of AAL. Didn’t know the clean-out had

been so extensive. Didn’t check on Mr Olu’s status at the time
in AAL.
5. Denied that he had sold all 4 engines to subcontractor. Said

his threat of 12 March 2008 was attempt to get ‘positive
reaction’.
6. Denied his premises unfit. State of premises as reported by

Dr RA because of move of workshop to new location that
month.
7. Wouldn’t give name of subcontractor to AAL as this was his

surety against the monies owed him.
8. Was prepared to carry out the original contract ‘in its spirit’
with new time periods.
14h30 (after lunch)
My questions
1. Stated the valuation of $4,500,000.00 probably correct when
fully serviceable and each engine worth an equal amount.
[I asked Mr A for the C t’s position on this and he noted that C t was
in agreement with these figures.]
2. Witness was unnerved when I asked if he would swear or

affirm that the evidence he had given was true and full. [I did
not press this.]
End of Rt’s evidence.

15h00
Respondent’s Closing Statement
1. The issues were clear. The Ct had drawn up an imprecise

contract, evidenced from the beginning by its slack attitude to
dates and consistency. It had been necessary for Rt to
interpret it, particularly when faced with an inability to
perform in accordance with a specific term that disallowed
subcontracting outside UK. No reason was given for such a
restriction and no evidence was produced that other facilities
might not be every bit as good as those in UK.
2. Perhaps AAL was thinking of its difficulties with Sabena when

they drew up the contract? This is the only explanation that
could be given to this express term in the circumstances and
as were shown by the subsequent court proceedings in
Brussels.
3. It was only proper that Rt had done what it did, certainly with
no knowledge that there might be a difficulty in getting the
engines back from Sabena. Indeed, the Rt is to be
commended for making every reasonable effort to carry out
its bargain. It was unfortunate –and no fault of the R t– that
events made the situation worse.
4. Rt was justified in not disclosing present location of engines.

It had spent much time and money (which has been fully and
properly vouched) in trying to perform the contract and was,
in any event, empowered under its terms and that of the PoA
to treat the engines as its own in such a situation.
5. The final statement by Mr Terram was in effect a request to

amend the Rt’s SoD as to its counterclaim: that, as an

alternative to the specific damages as counterclaimed (if not

allowed), the Rt sought a declaration that the contract is in
force to be executed as originally agreed but within six
months the date of the Award instead of the original time
period.
[Mr C agreed that he was asking for such an amendment. Mr A

protested, citing its lateness, the length of time since the SoD had
been submitted, the changes in the meantime, particularly the
greatly reduced value of lease back arrangements, AAL’s loss of
faith in Harmony and this amendment would seriously prejudice
AAL. I agreed with these points & refused the application.]
16h00
Claimant’s Closing Statement
1. It was obvious that the Respondent was in breach of the

express term not to subcontract outside UK. There was no
excuse for this, even the difficulties at the time following the
scare about that particular type of engine. Even if (which was
denied) the hardship clause was relevant in such a situation
and even if (which was denied) the ‘time of the essence’
nature of the contract was relevant, Rt by its own admission
had made a very poor attempt to contact AAL to renegotiate.
Why hadn’t there been further attempts to make contact, on
later days? It was quite clear that the R t just went ahead
despite the terms of the Agreement.
2. As to the other 2 engines, it was clearly wrong to have these

hidden out of the reach of the Ct by having them kept in
another State in a subcontractor’s workshop. That is, if

indeed there were there or anywhere. No evidence has been

submitted in support of this statement by Mr Terram whose
whole evidence was questioned by the learned Arbitrator.
[I interrupted to correct any misunderstanding: the fact that Mr

Terram did not swear or affirm did not mean that I questioned his
testimony.]
[Mr A apologised and then continued.]
3. It was clear that justice could only be done in a situation of

such uncertainty – existence and/or state of the engines;
extreme lateness of performance by the Rt required by the
contract – by awarding the Ct’s claim in full.
4. The whole thrust of the contract had been harmed by the R t’s
approach and attitude to it. The Ct was entitled to all it
claimed, as in the SoC.
16h45
(End of hearing)

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Arbitration Award Writing Topic 1: Introduction and Issues & Deciding (continued)

Topic 1 : Introduction and Issues & How to

Students are reminded to re-read the Arbitration Practice &

Legislative provisions usually require that an Award contains the

for The Robert Gordon University 1

2. Contentions on the Issues

(i) the contentions of the parties ;

(ii) the relevant evidence from witnesses ; and

(iii) the representations (opening and closing statements) made

for The Robert Gordon University 2

4. Findings of Fact (& Holdings of Law)

For an example of what not to do in your Award, note what Mr

for The Robert Gordon University 3

between the parties. The sections on submissions comprise 15

for The Robert Gordon University 4

Fact. A thing done ; an action performed or an incident

(from Mustill & Boyd’s Commercial Arbitration)

for The Robert Gordon University 5

was a finding of fact or a conclusion of law or a mixed conclusion of

for The Robert Gordon University 6

Mixed conclusions of fact and law

5. Dealing with Legal Submissions

for The Robert Gordon University 7

6. Writing out Decisions

8. How to Deal with Arguments

for The Robert Gordon University 8

3. Try to think through the relationship between the steps. What

b) Maybe he can save the argument by changing (often

for The Robert Gordon University 9

Additional Points to Ponder

for The Robert Gordon University 10

availability heuristic is one of the few that is amenable to correction

Finally ... Intuition

for The Robert Gordon University 11

for The Robert Gordon University 12

for The Robert Gordon University 13

ALL the materials recommended in the Topics in Arbitration Practice &

UNCITRAL Notes on Organizing Arbitral Proceedings (2016)

Activity 1- Suggest 4 hours

Don’t forget ; this examination is ‘open-book’ - you may refer to any

for The Robert Gordon University 14

for The Robert Gordon University 15

Nature of the Dispute

Parker and Knowles representing Culture plc

for The Robert Gordon University 16

Extract from Contract

Extract from EECMA Conditions

for The Robert Gordon University 17

Culture plc v Soton Aircon plc

for The Robert Gordon University 18

IN THE MATTER OF THE ARBITRATION ACT 1996

IN THE MATTER OF AN ARBITRATION

Soton Aircon plc

for The Robert Gordon University 19

IN THE MATTER OF THE ARBITRATION ACT 1996

IN THE MATTER OF AN ARBITRATION

for The Robert Gordon University 20

(ii) the Hemivarm Compatible Sanasistema Climate System.

Charles da Costa QC instructed by Parker and Knowles

for The Robert Gordon University 21

IN THE MATTER OF THE ARBITRATION ACT 1996

IN THE MATTER OF AN ARBITRATION

1. The Respondent confirms the names and addresses of the parties.