ICDPASO Commercial Arbitration Rules Interpretation Series:Article 37 “Making of the Award”

The arbitral award is the ultimate purpose of the arbitration proceedings, the concentrated embodiment of the Arbitral Tribunal’s exercise of discretion, and the final legal declaration of the parties’ rights and obligations. The quality and normative nature of an award are directly related to the fairness, efficiency and authority of the arbitration, and are the lifeline for the award to obtain smooth judicial recognition and enforcement in the future.

I. Rule Text

Article 37. Making of the Award

1. The arbitral award shall be made in writing, indicating the claims, the disputed issues, the reasons for the award, the result of the award, the bearing of arbitration costs, the date of the award and the seat of arbitration.

If the parties agree that there is no need to indicate the reasons or the award is made in accordance with the settlement agreement of the parties, the disputed issues and the reasons for the award may not be stated.

2. If the Arbitral Tribunal is composed of more than one arbitrator, it shall make an award based on the majority opinions, while the minority opinions may be recorded in the hearing transcript; if no majority opinions can be reached, the award will be made in accordance with the opinion of the presiding arbitrator, while the opinions of other arbitrators may be recorded in the hearing transcript.

3. The arbitral award shall be signed by the arbitrators; the dissenting arbitrators may choose not to sign the arbitral award, provided that, they shall state the reasons for not signing.

4. The Arbitral Tribunal shall submit the arbitral award signed by the arbitrators to the Court of Arbitration. If it is confirmed that the arbitration costs have been paid in full, the Court of Arbitration shall send the arbitral award to the parties after affixing its seal thereon.

5. With the unanimous consent of the parties, the arbitral award may be published if the following conditions are met:

(a) to protect or enforce a legal right;

(b) to the extent required by the statutory disclosure obligation if the legal proceedings of a court or other competent authorities are involved.

6. The arbitral award shall enter into force as of the date of making.

Ⅱ. The Main Purpose and Significance Analysis of “Making of the Award”

The making of the award involves numerous steps, from the form and content of the award to the decision-making mechanism, from the arbitrators’ signatures and the Arbitration Court’s confirmation to the final delivery and entry into effect, forming a rigorous chain of legal actions. Through six paragraphs, this article establishes a complete normative system for making the award, aiming to safeguard substantive justice through procedural fairness and uphold the authority of the award through regulatory rigor, while reserving reasonable space for party autonomy and the necessary discretion of the Arbitral Tribunal. Firstly, the statutory requirements for form and content are the cornerstone of an award’s legality. Secondly, the award’s decision-making mechanism and the requirement for arbitrators’ signatures are a concentrated manifestation of the Arbitral Tribunal’s independence and democratic decision-making. Finally, the rules on confirmation, delivery, and limited publication of the award are crucial steps in transforming the effect of the award from the will of the Arbitral Tribunal into a binding legal force in reality. Every detail of this article revolves around enhancing the certainty, enforceability and international credibility of the award, providing a solid procedural guarantee for the quality of ICDPASO arbitral awards.

Ⅲ. Analysis of Article 37, Paragraph 1: Form and Content of the Arbitral Award

Article 37, paragraph 1 of the ICDPASO Commercial Arbitration Rules stipulates the requirements concerning the form and content of the arbitral award.

In the first place, it establishes the form of the arbitral award, stipulating the fundamental principle that the arbitral award must be made in writing. The written form is the physical medium for fixing, delivering, reviewing, and enforcing the award, and is the most basic requirement of procedural legitimacy. The written form also satisfies the mandatory requirements of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.①In this regard, the HKIAC Administered Arbitration Rules, the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, and the SIAC Arbitration Rules also have clear stipulations.②

In addition to the formal requirements, this paragraph also stipulates seven items that must be included in the award, which are generally consistent with the provisions of the Arbitration Law of China.③Except for awards made by party agreement or pursuant to a settlement agreement reached by the parties, the arbitral award shall contain the arbitration claims, the facts of the dispute, the reasons for the award, the operative part of the award, the allocation of arbitration costs, the date of the award, and the place of arbitration.

First, the arbitration claims and the facts of the dispute constitute the objective basis of the award. The arbitration claims define the scope of relief sought by the claimant and the boundaries of the respondent’s defense, delineating the specific arena for the Arbitral Tribunal’s exercise of jurisdiction. The statement of the facts of the dispute is the legal facts found by the Arbitral Tribunal through evidence examination; it is the minor premise for legal reasoning and application. A clear and accurate record of the facts of the dispute is the foundation upon which the reasons for the award can be developed.

Second, the reasons for the award are the logical bridge connecting the facts of the dispute and the operative part of the award. The reasons section needs to fully elaborate how the Arbitral Tribunal, based on the established facts, applies relevant legal rules, commercial practices, or contractual terms to progressively derive the final award. An award with sufficient reasoning and rigorous logic can not only make the parties understand the reasons for winning or losing, thereby enhancing their acceptance of the award, but also effectively withstand potential future judicial scrutiny. For the court of the place of enforcement, thorough reasons are a crucial basis for judging whether the arbitration proceedings were fair and whether the award violates public policy.

Third, the operative part of the award is the tribunal’s final decision on the arbitration claims and the concluding part of the award. The wording of the operative part must be clear, specific, unambiguous, and enforceable. For example, if payment of money is ordered, the currency, amount, interest calculation standard, and the commencement date and term of performance should be specified; if performance of an act is ordered, the content, method, and time limit for performance should be specified. An ambiguous operative part will create significant obstacles for subsequent performance or enforcement.

Fourth, the allocation of arbitration costs is the tribunal’s final scheme for allocating arbitration costs, including institutional fees and arbitrator remuneration, as well as other costs such as reasonable legal fees, based on factors such as the outcome of the case, the parties’ success ratio, and any improper conduct during the proceedings. Arbitration costs are also an important aspect of the economic responsibilities between the parties. 

Fifth, according to paragraph 6 of this article, the date of the award is also the date on which the award becomes effective, which is crucial for matters such as the calculation of interest, the performance of obligations, and the commencement date of the time limit for applying to set aside the award.

Sixth, the place of arbitration determines the “nationality” of the award, thereby identifying the specific national court with supervisory jurisdiction over the award. Determining the place of arbitration is a crucial prerequisite whether applying to set aside the award or seeking its recognition and enforcement internationally.

While emphasizing the completeness of the award’s content, this paragraph also grants parties the right to simplify the content of the award through mutual agreement, reflecting the respect of the ICDPASO Commercial Arbitration Rules for party autonomy. Parties may, out of a pursuit of efficiency in arbitration, wish to omit reasons to expedite the making of the award, or based on commercial confidentiality considerations, wish to avoid disclosing commercial secrets or strategies in the reasons for the award, and may jointly and expressly waive the right to require the Arbitral Tribunal to provide reasons. In such cases, an award made by the Arbitral Tribunal without stating reasons fully complies with the rules. Furthermore, in cases where the award is made in accordance with the terms of a settlement agreement reached by the parties, the award made by the Arbitral Tribunal essentially confers legal enforceability upon the settlement solution voluntarily reached by the parties themselves. Since the result is a product of mutual agreement between the parties, there is naturally no need for the Arbitral Tribunal to separately determine the facts of the dispute or elaborate on the reasons for the award; it only needs to accurately record the content of the settlement agreement.

It is worth noting that besides awards made by party agreement or pursuant to a settlement agreement reached by the parties, there are other exceptions to this paragraph. Interlocutory awards made in accordance with Article 39 or partial awards made in accordance with Article 40 of these Rules are not required to fully comply. Taking the allocation of arbitration costs as an example, if it is an interlocutory or partial award, the arbitration costs may not yet be determinable at that time, let alone the method of allocation, so this item may be omitted at that stage.

Regarding the content of the award, different arbitration institutions have different provisions. For example, the ICC Arbitration Rules have clear requirements for the reasons for the award;④ the SIAC Rules stipulate the reasons for the award, the registrar’s determination of costs, and the allocation of costs, and also include provisions on the award of interest;⑤ the HKIAC Administered Arbitration Rules and the SCC Arbitration Rules disperse the required content of the award across various provisions.⑥ 

Ⅳ. Analysis of Article 37, Paragraph 2: Decision-Making Principles of the Arbitral Tribunal

Article 37, paragraph 2 of the ICDPASO Commercial Arbitration Rules stipulates the principles for making the award when the Arbitral Tribunal cannot reach a unanimous opinion on the merits of the case, with its core being to balance the democracy of decision-making with the efficiency of the proceedings.

Situations where opinions diverge can only occur in Arbitral Tribunals composed of more than one arbitrator, and such situations are not uncommon. When arbitrators hold differing views, requiring the tribunal to form a unanimous opinion before making an award would inevitably lead to serious delays in the arbitration proceedings, adversely affecting the parties’ legitimate rights and interest To avoid this, similar to the rules of most arbitration institutions such as ICC, HKIAC, SCC and SIAC,⑦ the ICDPASO commercial Arbitration Rules stipulate the method for making an award when the Arbitral Tribunal cannot reach a unanimous opinion. first, make the award in accordance with the majority opinion. Second, failing a majority, make the award in accordance with the presiding arbitrator’s opinion.

These two methods are sequential. The majority rule is the fundamental principle for tribunal decision-making, reflecting the democratic nature of collective decisions, aimed at ensuring that the award represents the judgment of the majority of the tribunal, thereby enhancing the objectivity and fairness of the award. Resorting to the presiding arbitrator’s opinion is only permissible when the tribunal cannot form a majority opinion. This provision acts to prevent the arbitration proceedings from reaching an impasse due to diverging opinions among arbitrators. In a three-member tribunal, situations may arise where each arbitrator holds a different opinion, making a majority impossible. In such a case, authorizing the presiding arbitrator’s opinion as the deciding one does not grant the presiding arbitrator a privilege, but is based on the fact that the presiding arbitrator typically bears important responsibilities such as advancing the procedure and organizing deliberations, and is expected to possess higher professional experience and coordination skills. This is a pragmatic procedural arrangement ensuring that the proceedings can always produce a final award.

Beyond the decision-making principle, this paragraph also grants arbitrators holding a minority or differing opinion the right to have their views recorded in the hearing transcript. The “hearing transcript” here are generally understood as the record of the tribunal’s deliberations or a dissenting opinion that may be appended to the award. Allowing the recording of minority opinions has multiple values. First, it protects the right of arbitrators with differing views to fully express their perspectives, reflecting respect for the independence of arbitrators. Second, it enhances the transparency of the arbitration proceedings, helping the Arbitration Court and the parties understand the decision-making process and assisting parties in evaluating the award more rationally. Third, the minority opinion itself may contain profound legal insights, offering reference value for the handling of similar future cases or the development of the law. At the same time, the word “may” indicates that recording the opinion is a right of the arbitrator, not a mandatory obligation. When exercising this right, arbitrators should ensure their analysis and judgment of the case dispute are objective, rather than abusing the right to inappropriately attack the majority award.

Ⅴ. Analysis of Article 37, Paragraph 3: Signatures of Arbitrators

Article 37, paragraph 3 of the ICDPASO Commercial Arbitration Rules stipulates that arbitrators shall sign the award, which is a formal requirement for arbitrators to confirm the content of the award, consistent with the requirements of the Arbitration Law of China.⑧ An award signed by all arbitrators is a complete presentation of the collective will of the Arbitral Tribunal and a hallmark of the award's full formal validity.

An arbitrator holding a dissenting opinion has the right to decide whether to sign the award, and no organization or individual may interfere with this decision. On one hand, for the purpose to maintain the uniformity and authority of the award’s form, dissenting arbitrators are encouraged to sign, indicating that although they disagree with the outcome, they recognize the legitimacy of the arbitration proceedings. On the other hand, a dissenting arbitrator may also choose not to sign to uphold their independent opinion, which is a sign of respect for the arbitrator’s independent judgment. However, if choosing not to sign, they must state the reasons for not signing, which is also common practice among international arbitration institutions.⑨This proviso helps the Arbitration Court and the parties understand the circumstances surrounding the award and also serves as proof that the non-signing arbitrator fully participated in the arbitration proceedings. It is important to note that even if an arbitrator refuses to sign the award, the award is still made through proper procedures. Therefore, when enforcing the award, a party cannot use the non-signing arbitrator’s failure to participate in the hearing of the case as a defense, claiming that the arbitration procedure did not conform to the rules, thereby refusing to enforce the award or requesting the court to set it aside. After all, the integrity of the arbitration proceedings is evidenced by the opinions recorded by the non-signing arbitrator. Regarding this point, the SCC Arbitration Rules have clear provisions.⑩

Ⅵ. Analysis of Article 37, Paragraph 4: Confirmation by the Arbitration Court

The submission of the award signed by the arbitrators to the Arbitration Court marks the substantial completion of the Arbitral Tribunal’s adjudicative function. The tribunal is responsible for the substantive hearing of the case and the drafting of the award, while the Arbitration Court, as the arbitral administering body, is responsible for the subsequent procedural and administrative tasks. This division of labor reflects the characteristics of institutional arbitration and ensures the standardization of procedures.

Before the award is issued, the parties must first settle all arbitration costs in full. This is key to safeguarding the core economic interests of the arbitral institution. Most international arbitration institutions have similar provisions in their rules.⑪The operation of arbitral institutions depends on the arbitration fees paid by the parties. Until the costs are settled, the Arbitration Court has the right to withhold the issuance of the award. This mechanism effectively urges parties to fulfill their payment obligations promptly, ensuring the integrity of the arbitration proceedings and the normal operation of the institution.

Before the award is formally sent to the parties, the Arbitration Court shall affix its seal to the award. This requirement aligns with the Arbitration Law of China.⑫ Affixing the seal of the arbitral institution on the award is one of the essential elements for the award’s validity. Taking the ICDPASO Arbitration Court as an example, affixing its seal carries two layers of meaning. First, it indicates that the ICDPASO Arbitration Court is the administering institution for these arbitration proceedings. Second, it indicates that the award has been scrutinized by the ICDPASO Arbitration Court. Thus, the ICDPASO Arbitration Court assumes responsibility for this award.

Ⅶ. Analysis of Article 37, Paragraph 5: Publication of the Arbitral Award

As a matter of principle, arbitral awards are not published externally. This is one of the characteristics and advantages of commercial arbitration. While adhering to the principle of confidentiality of arbitral awards, this paragraph establishes a limited mechanism for exceptional publication, providing a legal basis for parties to utilize the arbitral award under specific needs, reflecting a certain response of current arbitration practice to the demands for transparency and public value.

According to this paragraph, the publication of an award must satisfy two conditions simultaneously. The first one is the substantive condition. it must be necessary to protect or enforce a legal right, or it must relate to legal proceedings of a court or other competent authority. “To protect or enforce a legal right” means, for example, when a party applies to a court for enforcement, it needs to submit the award. “Relates to legal proceedings of a court or other competent authority” refers to judicial review proceedings by a court, such as an application to set aside the award, or procedures requiring the provision of information to tax authorities, law enforcement agencies, etc. In the latter scenario, even if publication of the arbitral award is permitted, it is limited to the extent and within the limits required by the legal duty of disclosure, not unconditional full-text publication. The second one is the formal condition. Unanimous consent of all parties must be obtained. If any party objects, the award shall not be published.

From a comparative law perspective, the ICC Arbitration Rules adopt a negative stance towards the publication of awards.⑬The SIAC Arbitration Rules allow publication of awards provided that the names of the parties and other identifying information are redacted, but only with the prior written consent of all parties.⑭The HKIAC Administered Arbitration Rules maintain confidentiality as the principle but allow parties to agree otherwise.⑮ 

Ⅷ. Analysis of Article 37, Paragraph 6: Effective Date of the Arbitral Award

The effective date of the award is highly significant, serving as a crucial benchmark for determining the starting point for performance of obligations stated in the award, whether the obligated party has delayed performance, and whether the performance period has expired. Article 37, paragraph 6 of the ICDPASO Commercial Arbitration Rules states: “The arbitral award shall enter into force as of the date of making.” This content is consistent with Article 70 of the Arbitration Law of China.⑯ The award becomes effective on the date it is made, meaning the effective date of the award is the same as the date of the award, which is clearly recorded in the award itself.

The award becoming effective means. First, the arbitral award takes effect immediately upon being made; its validity does not require confirmation through court proceedings. The award thereby becomes a legal document that can be used as a basis for applying for enforcement. If the losing party fails to voluntarily perform the obligations specified in the award, the winning party has the right to apply to a competent domestic or foreign court for compulsory measures based on this award. Second, the arbitral award is binding on the parties immediately upon being made, without needing to be served. This facilitates the determination of the starting time and period for performing the obligations stated in the award. If the award only bound the parties after being received and signed for, this would, on one hand, increase the difficulty of determining when the parties received the award, and on the other hand, if a party refused to accept or the award could not be served, it would prevent the award from becoming effective, undermining the credibility of the arbitration. Regarding the subject matter of the dispute resolved by the award, the parties cannot initiate new arbitration or litigation over the same dispute. The theory of “ne bis in idem” (not twice in the same thing) formally takes effect at this moment. Third, parties cannot challenge the substantive content of the award through ordinary appeal channels. The tribunal’s determinations on fact-finding and legal application become the final, definitive state of the legal relationship between the parties. The SIAC Arbitration Rules provide a detailed explanation, stating that the award shall be final and binding on the parties from the date it is made, the parties undertake to carry out the award immediately and without delay, and they irrevocably waive their rights to any form of appeal, review, or recourse to any court or other judicial authority with respect to the award.⑰

Ⅸ. Conclusion

Article 37 of the ICDPASO Commercial Arbitration Rules is a well-structured, logically coherent, and exquisitely balanced provision. Through its stringent requirements and flexible exceptions regarding the form and content of the award, it establishes the award’s solemnity as a legal document while prioritizing party autonomy. Through the organic combination of the majority rule and the presiding arbitrator’s deciding vote, it ensures both the democratic foundation of the tribunal’s collective decision-making and ultimate efficiency in breaking deadlocks. Through the procedural design involving arbitrators’ signatures and institutional seal confirmation, it achieves the connection between the independent exercise of discretion and institutional procedural oversight. Through the cautious allowance for limited publication of awards, it responds to the tension between the tradition of award confidentiality and modern demands for transparency. Finally, by clarifying the moment the award takes effect, it establishes the award's final legal authority and enforceability. The entire set of rules functions like a precision machine, driving the arbitration process towards the goal of producing a fair, efficient, highly enforceable award that meets international standards. This article is not only a technical guide for ICDPASO arbitration proceedings, but also a commitment by ICDPASO, as an international neutral third party with arbitration functions, to global commercial entities regarding procedural fairness, efficiency, and award quality.