ICDPASO Commercial Arbitration Rules Interpretation Series:Article 43 “Supplementary Award”

If, after receiving the arbitral award, a party finds that the award fails to decide on relevant arbitration claims, it should promptly file a request with the Arbitral Tribunal. International arbitration rules generally establish a supplementary award system to protect the parties’ right to obtain relief and maintain the integrity and credibility of the arbitration proceedings.

I. Rule Text

Article 43. Supplementary Award

1. If a party considers that a claim is omitted from the award, it may, within thirty (30) days from the date of receipt of the award and after notifying other parties, request the Arbitral Tribunal in writing to make a supplementary award.

2. If the Arbitral Tribunal considers that there indeed are omissions, it shall make a supplementary award within thirty (30) days from the date of receipt of the aforesaid written request.

3. The Arbitral Tribunal may, if necessary, extend the time limit for making the award.

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

This article aims to provide a statutory post-award remedy procedure specifically for arbitration claims or counterclaims that have been omitted from the award.

First, this article provides a clear remedy safeguard for the parties’ procedural rights. The core purpose for a party submitting arbitration claims to the Arbitral Tribunal is to obtain relief regarding those claims. If the award fails to address a specific claim, the award contains an omission. In many arbitration legal systems, such an omission may constitute grounds for setting aside or refusing enforcement of the award. This article grants parties the right to proactively apply upon discovering an omission, enabling them to request the Arbitral Tribunal to correct the relevant error through the established procedure.

Second, it serves as a reconfirmation and supervision of the Arbitral Tribunal’s duties. The Tribunal’s duty is to comprehensively hear and decide on all claims submitted by the parties. Omitting an arbitration claim essentially means the Tribunal has failed to fully perform its duty. The supplementary award system is both a remedy for such oversight and a correction mechanism. It reminds the Arbitral Tribunal to carefully verify whether all claims have been covered when making the award and to undertake the obligation to correct any oversight, thereby strengthening the Arbitral Tribunal’s sense of responsibility for procedural completeness.

Ⅲ. Analysis of Article 43, Paragraph 1: Parties’ Right to Request a Supplementary Award and Procedural Requirements

This paragraph establishes the parties’ right to initiate the supplementary award procedure and the conditions for exercising it.

First, the prerequisite for a party’s request is that a claim is omitted from the award. In the first place, the object of omission should be an arbitration claim. A substantive proposition formally submitted by a party during the arbitration proceedings for the Arbitral Tribunal’s decision. For example, if a claimant raises three independent claims for relief, and the award only addresses two of them, this constitutes an omission of the third claim. Or, if the award mentions a claim but fails to make any substantive decision on it, neither granting nor dismissing it. This should also be considered an “omission”. In the second place, the omission must be due to oversight. The prerequisite for applying the supplementary award system is that the tribunal failed to address a claim due to oversight, not that it decided not to grant it after careful consideration. A party cannot request the initiation of a supplementary award on the grounds that a claim was not granted. However, if the Arbitral Tribunal’s reasoning indicates a negative stance towards a claim, but the operative part of the award does not expressly state this, such a situation constitutes an “omission”. In the third place, there is an essential difference between the supplementary award and the correction of award. The supplementary award involves the parties’ substantive and procedural rights and obligations, whereas the correction of the award only involves formal defects and does not alter the substantive content of the award.

Second, any party may request the supplementary award, typically the party whose interests are harmed by the omission.

Third, the request must be made in writing. Oral requests are invalid. This ensures the formality and traceability of the supplementary award procedure.

Fourth, one of the procedural requirements for requesting a supplementary award is notifying the other parties. This notification obligation is a core manifestation of the principle of due process. Although a supplementary award corrects an omitted claim, it is essentially a decision on the parties’ substantive rights and obligations. It must ensure that all parties have an equal right to present statements and arguments on the issue. The purpose of notifying other parties is to inform them of the initiation of the supplementary award procedure and give them an opportunity to express views on matters such as the omitted claim itself, whether an omission occurred, and whether a supplementary award should be made. A supplementary award made without notifying other parties may face the risk of being quashed or risk of refused enforcement due to a violation of the principle of due process.

Fifth, the time limit for a party’s request is within 30 days from the date of receipt of the award. If the request is not made within this period, the party is deemed to have waived its right to seek relief through the supplementary award procedure. If a request on the same matter is made subsequently, the Arbitral Tribunal shall not accept it. The purpose of setting a fixed period is to encourage parties to review the award promptly, identify omissions early, and avoid affecting the parties’ reliance on the award due to the prolonged pendency of a supplementary award procedure, thus maintaining the finality of the award and the stability of legal relations.

From a comparative law perspective, the ICC Arbitration Rules similarly provide that a party may apply for a supplementary award within 30 days from the receipt of the award.① The UNCITRAL Arbitration Rules, the ICDR International Arbitration Rules, the SCC Arbitration Rules and the HKIAC Administered Arbitration Rules stipulate a 30-day application period and the procedural requirement to notify all parties.②③④⑤ The LCIA Arbitration Rules stipulate a 28-day application period, a written application form and the procedural requirement to notify all parties.⑥ The SIAC Arbitration Rules stipulate a 30-day application period, a written application form and the procedural requirement to notify all parties.⑦

Ⅳ. Analysis of Article 43, Paragraph 2: The Tribunal’s Review, Handling, and Procedure for Making a Supplementary Award

This paragraph establishes the standards and procedural requirements for the Arbitral Tribunal’s handling of a party’s request.

First, the Arbitral Tribunal has substantive review authority. Similar to the correction of award procedure, the Arbitral Tribunal also has substantive review authority when faced with a party's request for a supplementary award. The core of the review is to determine whether the party’s contention is valid. That is whether the award indeed omitted the handling of a specific arbitration claim. The determination of whether an omission exists should be made by comparing documents such as the statement of claim, statement of defense, and counterclaim with the reasoning and operative parts of the award. Upon review, if the Tribunal finds that there indeed was an omission, it shall make a supplementary award. If it finds that no omission occurred, it shall dismiss the request and state the reasons accordingly.

Second, the time limit for making a supplementary award is within 30 days from the date of receipt of the written request. The ICC similarly provides a 30-day period,① while the LCIA provides a 56-day period,⑥ and UNCITRAL, SCC, HKIAC and SIAC all provide a 60-day period.②④⑤⑦ Regardless of the length, stipulating a fixed period aims to ensure the timeliness of the supplementary award procedure, preventing the parties’ right to relief from being frustrated by procedural delays. The period commences from the date the Tribunal receives the party’s written request.

Third, regarding the content, the supplementary award should make an independent and complete substantive decision on the omitted arbitration claim, including findings of fact, application of law, reasons for the award, and the result of the award. If handling the omitted claim requires re-evaluating facts already found in the original award, the Arbitral Tribunal should clarify the logical connection with the original award in the supplementary award to ensure the overall coherence of the award. It is important to note that a supplementary award cannot alter the content already decided in the original award. It essentially involves “adding” rather than “modifying”, otherwise, it would violate the principle of “finality of award”.

Fourth, the supplementary award forms part of the original award. This means the supplementary award must be signed by the Arbitral Tribunal, undergo the draft award scrutiny procedure by the Court of Arbitration, and ultimately be sealed by the Court of Arbitration and sent to the parties. It also means the supplementary award is final and binding on all parties. Also, a party may apply for independent enforcement of the supplementary award or together with the final award. What’s more, the content of the supplementary award automatically corrects the completeness defect of the original award.

Ⅴ. Analysis of Article 43, Paragraph 3: Extension Mechanism for the Time Limit to Make a Supplementary Award

This paragraph provides necessary flexibility for the supplementary award procedure, serving as a key design to balance procedural efficiency and substantive fairness, and is an internationally common practice.①②④⑤

First, the prerequisite for applying the extension mechanism is “if necessary”. The core is determining whether objective, justified reasons exist preventing the Arbitral Tribunal from completing the supplementary award within the 30-day period. Examples include force majeure factors affecting Arbitral Tribunal members, or complexities in coordinating with the original award.

Second, the decision to extend the time limit rests with the Arbitral Tribunal. This provision contrasts with the model in Article 36 “Time Limit for the Award”, where extending the time limit for the award requires approval from the Court of Arbitration. This is mainly because a supplementary award remedies a defect in the original award, and its procedure is independent of the management framework for the original award’s time limit. Moreover, extending the time limit for a supplementary award often involves judgment on handling the omitted claim, and the Arbitral Tribunal is more aware of the actual needs.

Third, the reasonableness and limits of the extension. Although this provision does not specify a limit for the extended period, the Arbitral Tribunal should follow the principle of reasonableness when exercising the discretion. The extension period should match the complexity of the case, avoiding undue procedural delays caused by excessive extension. At the same time, the extension should be kept as short as possible to minimally affect the parties’ expectations regarding the award’s outcome.

Ⅵ. Conclusion

The primary value of Article 43 lies in its guarantee of the completeness of the award. It acknowledges possible oversights and omissions in the arbitration process and provides a remedy for such procedural defects. Then, this article reflects a supplement to and maintenance of the principle of “arbitration award shall be final and binding”. It does not negate the finality of the award but perfects the conditions for achieving finality, thereby genuinely safeguarding the authority and credibility of the arbitration process. What’s more, through the time limit extension mechanism in paragraph 3, it demonstrates the pragmatism and flexibility of the rule design, providing the necessary procedural space for the Arbitral Tribunal to handle special circumstances. Finally, this article forms a complementary procedural remedy system with Article 42 “Correction of the Award”. The former addresses omissions in substantive matters, while the latter addresses formal defects. Together, they constitute a dual guarantee within the ICDPASO Commercial Arbitration Rules for ensuring the completeness and accuracy of award documents.

In practice, parties should pay close attention to the 30-day time limit for requesting a supplementary award, reviewing the award promptly upon receipt and initiating the procedure immediately upon discovering an omission. The Arbitral Tribunal should make full use of the supplementary award procedure to ensure the quality standards of the documents it produces. The Court of Arbitration, as the administering institution, can review the draft supplementary award through the scrutiny procedure provided in Article 41, providing a guarantee for the final quality of the award.