Published: 2026-02-27 00:00
The arbitral award is a written document with final legal effect, made by the Arbitral Tribunal in accordance with the arbitration procedure, based on the ascertained facts and legal provisions, rendering a decision on the disputed case submitted by the parties for arbitration. The award is not only the Arbitral Tribunal’s final declaration of the parties’ rights and obligations in the case but also the crystallization of the authority and legality of the entire arbitration process. To ensure the authority and reliability of this outcome, in commercial arbitration cases involving institutional administration, arbitral institutions have generally established a crucial internal quality supervision procedure —— the scrutiny of the draft award①. This aims to provide institutional-level guarantees for the normative quality, enforceability, and procedural fairness of the award.
I. Rule Text
Article 41. Review of the Draft Award
1. Before signing any award, the Arbitral Tribunal shall submit the draft award to the Court of Arbitration for review.
2. Without prejudice to the making of an award independently by the Arbitral Tribunal, the Court of Arbitration may draw the attention of the Arbitral Tribunal to the relevant issues of the award.
Ⅱ. The Main Purpose and Significance Analysis of “Review of the Draft Award”
This article aims to establish an internal quality assurance mechanism whereby the arbitral institution reviews the draft award prepared by the Arbitral Tribunal concerning formal issues, procedural matters, and necessary substantive issues. Through advisory scrutiny, it assists the Arbitral Tribunal in improving the quality of the award, minimizing the risk of the award being challenged during subsequent recognition and enforcement phases due to formal defects or significant procedural flaws, thereby safeguarding the finality and enforceability of the award, and the credibility of the arbitral institution.
The scrutiny process is not an intervention by the Court of Arbitration in the Arbitral Tribunal’s discretion, but rather a manifestation of the Court exercising its procedural administration function and a professional service provided by the arbitral institution. Leveraging its professional experience, the Court of Arbitration can identify potential formal omissions in the draft award from an institutional perspective, such as issues with signatures, dates, or notification matters, as well as calculation errors or apparent contradictions in the reasoning. This kind of remind, in essence, supports the Arbitral Tribunal’s work, helping it produce more rigorous award.
From the parties’ perspective, one of their reasonable expectations when choosing institutional arbitration is to obtain the assurance brought by the institution’s professional management services. The scrutiny process directly serves this expectation by reducing the risk of the award being set aside or refused enforcement due to technical errors, thus protecting the dispute resolution outcome for which the parties have invested significant time and money. This design enhances parties’ trust in the ICDPASO arbitration mechanism and reflects the ICDPASO Arbitration Court’s commitment to the parties’ interests.
From the institution’s own perspective, scrutinizing draft awards is not only a supervision of the Arbitral Tribunal’s impartial exercise of adjudicative power but also a demonstration of the arbitral institution’s professional competence and management level. A systematic scrutiny mechanism is a common practice and core competitive advantage of leading international arbitration institutions. Ensuring through internal processes that every award rendered under its auspices meets high normative standards, enhancing credibility and enforceability expectations, is a key element in ICDPASO’s construction of a global dispute resolution brand.
Ⅲ. Analysis of Article 41, Paragraph 1: The Scrutiny Process
This paragraph establishes the cornerstone of the scrutiny process. The word “shall” indicates that submitting the draft award to the Court of Arbitration for review is a non-waivable obligation for the Arbitral Tribunal and a mandatory precondition before signing and issuing the award. This mandatory nature is a significant feature distinguishing institutional arbitration from interim arbitration. The International Chamber of Commerce (ICC) and the Singapore International Arbitration Centre (SIAC) also have similar provisions.②③④
Furthermore, this paragraph precisely defines the timing of the scrutiny. It takes place when the award is in draft form and before it is signed by the Arbitral Tribunal. “Draft award” means the document submitted for review is a version where the Arbitral Tribunal has substantially formed its decision but has not yet finalized it. At this stage, the Arbitral Tribunal still retains full and unfettered discretion to modify the content of the award. Submitting the draft allows necessary space for the Court of Arbitration to offer suggestions and for the Arbitral Tribunal to consider them. Submitting the draft for review before the Arbitral Tribunal signs it ensures that any scrutiny comments can be properly addressed by the Arbitral Tribunal before the award becomes effective.
Ⅳ. Analysis of Article 41, Paragraph 2: Principles of Scrutiny
This paragraph precisely balances the relationship between institutional procedural administration and the independence of the Arbitral Tribunal.
First, the independent discretion of the Arbitral Tribunal is the cornerstone of commercial arbitration. “Without prejudice to the making of an award independently by the Arbitral Tribunal” is the prerequisite for the Arbitration Court’s scrutiny. The Arbitral Tribunal enjoys independent authority granted by the rules and the law concerning its findings of fact, application of law, allocation of liability, and calculation of damages.
Second, the scope of the Arbitration Court’s scrutiny is generally limited to formal, procedural, and necessary substantive issues. While respecting the Arbitral Tribunal’s independent discretion, the Court of Arbitration may offer its views on relevant issues of the award. “Relevant issues” here are typically confined to formal and procedural matters. Substantive issues are sensitive and are not addressed unless necessary. The first one is formal Issues. The Court of Arbitration typically reviews the award’s format, structure, layout, accuracy and completeness of information regarding parties and the tribunal, clarity and unambiguity of the operative part, and obvious clerical errors in numerical calculations. The second one is procedural Issues. The Court of Arbitration typically reviews whether the award complies with the deliberation procedures stipulated in the arbitration rules, whether the procedures for applying for and approving certain processes are complete, and whether the award was made within the time limit set by the rules or the Arbitral Tribunal itself. The third one is substantive Issues. The Court of Arbitration generally does not review substantive issues of the award, as determining substantive matters is an exercise of the Arbitral Tribunal’s discretion. Only major issues, such as deciding beyond the scope of submission or failing to decide on all submitted claims, might prompt the Arbitration Court’s attention.
Third, the Court of Arbitration exercises its administrative power by drawing the attention of the Arbitral Tribunal to relevant issues of the award. This is an advisory, communicative interaction. Typically, the Court of Arbitration will point out observed issues in a written memorandum and suggest modifications for the Arbitral Tribunal’s consideration. The tone is consultative rather than commanding, aiming to assist rather than direct. The Arbitral Tribunal may choose to accept or not to accept the comments provided by the Court of Arbitration.
Fourth, the Arbitration Court’s administrative power also involves a degree of discretion. The use of “may” instead of “shall” indicates that the Court of Arbitration has discretion in deciding whether to draw a particular issue to the Arbitral Tribunal’s attention and to what extent. This is not passive inaction but proactive management based on professional judgment. For minor imperfections, the Court might choose not to comment; however, for significant issues that could affect the validity of the award, the Court has a responsibility to exercise this power. This discretion ensures that the scrutiny process focuses on truly critical risk points, enhancing the efficiency of the arbitration procedure and avoiding unnecessary interference with the Arbitral Tribunal.
From a comparative law perspective, respecting the independent discretion of the Arbitral Tribunal is the prerequisite for scrutiny by the Court of Arbitration. But different institutions have slightly different provisions on how this power is exercised. The ICC Arbitration Rules stipulate that the Court may modify the award on formal points but, concerning substantive issues, may draw the Arbitral Tribunal’s attention to them without affecting the Arbitral Tribunal’s liberty of decision.② The SIAC Arbitration Rules provide that the Registrar may suggest modifications to the form of the draft award and, without affecting the Arbitral Tribunal’s freedom to decide the dispute, draw its attention to points of substance.⑤
Ⅴ. Conclusion
Article 41 of the ICDPASO Commercial Arbitration Rules, through the mandatory scrutiny procedure for the draft award, establishes a professional quality control checkpoint for the arbitral award while simultaneously safeguarding the independent discretion of the Arbitral Tribunal. For the Arbitral Tribunal, cooperating with this scrutiny procedure is an important way to efficiently fulfill its duties and produce high-quality awards. For the parties, knowing of the existence of this mechanism enhances their confidence in the fairness and normative quality of the arbitration process.
① The origin of the scrutiny of draft awards mechanism can be traced back to the 1927 ICC Arbitration Rules, the first international arbitration rules to establish this system. At that time, the ICC International Court of Arbitration stipulated that: “After the arbitrator has completed the drafting of the award, a copy of the award shall be submitted to the Court for formal scrutiny. The award may only be issued after the Court has approved its form.” This marked the prototype of the scrutiny system. Subsequently, in the 1933 Rules, the ICC Court extended the scope of scrutiny from mere formal review to substantive issues, adding a provision that “the ICC Court, without affecting the arbitrator’s independent judgment, may draw the arbitrator’s attention to issues relating to the substance of the case.” Article 27 of the 1976 ICC Arbitration Rules is regarded as the “modern prototype” of the scrutiny system, explicitly authorizing the ICC Court to scrutinize awards for the first time. Over the following four decades, this mechanism was widely adopted by mainstream arbitration institutions globally and developed into two main models: procedural supervision (e.g., LCIA, ICDR) and substantive suggestion (e.g., SIAC, ICC). It is noteworthy that the scrutiny of awards system has matured in international commercial arbitration practice and is considered a cornerstone of ICC arbitration services and case management. Article 34 of the 2021 ICC Arbitration Rules further clarifies: “Before signing any award, the Arbitral Tribunal shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the award and, without affecting the Arbitral Tribunal’s liberty of decision, may also draw its attention to points of substance. No award shall be rendered by the Arbitral Tribunal until it has been approved by the Court as to its form.” This system was later adopted by the China International Economic and Trade Arbitration Commission (CIETAC) in its 1995 Arbitration Rules, becoming an important part of China’s arbitration practice. ② ICC Arbitration Rules (2021), Art. 34, which provides that: “Before signing any award, the Arbitral Tribunal shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the award and, without affecting the Arbitral Tribunal’s liberty of decision, may also draw its attention to points of substance. No award shall be rendered by the Arbitral Tribunal until it has been approved by the Court as to its form.” ③ SIAC Rules (2025) Art. 53.2, which provides that: “Before making the award, the Tribunal shall submit such award in draft form to the SIAC Secretariat and inform the parties of the date of submission. The Tribunal shall submit the draft award to the SIAC Secretariat not later than 90 days from the date of submission of the last directed oral or written submission in respect of the proceedings to which the award pertains, unless the Registrar determines otherwise.” ④ SIAC Rules (2025) Art. 53.4, which provides that: “No award shall be issued until it has been approved by the Registrar as to its form.” ⑤ SIAC Rules (2025) Art. 53.3, which provides that: “The Registrar may, as soon as practicable, suggest modifications as to the form of the draft award and, without affecting the Tribunal’s liberty to decide the dispute, draw the Tribunal’s attention to points of substance. The SIAC Secretariat shall inform the parties when the Registrar has completed the scrutiny.”
