How can you define whether an arbitration institution is credible or not? Arbitral awards that result from well-administered arbitrations will give the answer. The quality or the credibility of an arbitral award is the dominant factor that users consider when choosing among different dispute resolution mechanisms and endorsing arbitration by word of mouth.
Poor quality arbitral awards, which may lack elaboration of the facts or convincing reasoning, will fail user expectations of arbitration and even hinder the development of the arbitration industry at large. It is, therefore, the essence of arbitrators’ work and arbitration institutions’ administration to ensure the credibility of arbitral awards.
The guarantee of credibility is arbitrators’ consciousness of the importance of the matters at hand. An arbitral award is nothing less than a final word to an individual, a company or an entity. It is a judgment telling right from wrong. Parties will move onto different paths from the original legal relationship, and the nature of finality demands a clear cut of the cake.
That is the importance an arbitrator needs to be aware of when he or she is drafting an award and cutting the cake – to be impartial, fair and even-handed. Arbitrators should be careful of erroneous understanding of facts, stereotypes in reasoning, and to be mindful of words in arguments and responses.
An arbitrator should keep polishing an award until he or she can answer all the doubts embedded in his or her conscience. An arbitral award may close a dispute with the arbitrators’ words on record. The parties and their successors, however, will not forget. A fair arbitral award will sustain itself under whatever challenges and criticisms there may be. In short, arbitrators’ consciousness of importance of their decision is the foundation of credibility.
What makes a good quality arbitral award? The authors’ conclusion is “three in one”. Reliability, legitimacy and decency are the three measurements, and fairness is the one natural outcome.
Reliability means every ruling in an award must be directed to existing facts or factual grounds. An arbitrator needs to clarify and elaborate: Is it the result of an agreement or a conclusion of a statute? Is it based on documented evidence or the witnesses’/parties’ statements?
Examined evidence is the only reference of facts in arbitration. An award must elaborate on that reference according to the applicable rules. In extreme situations where facts are established by statements only, or need to be established by arbitrators’ own investigation or experience, arbitrators should be extra careful of becoming arbitrary.
It is noteworthy that under the Chinese legal framework, one has to apply the correct law and the accurate law when establishing facts. Find the correct legal hierarchy, define the applicable scope, and be aware of the update of new laws (for example, the Property Law changes the rule of real securities in the Security Law).
When drafting an award, one should imagine when the parties question a particular finding of fact, or the applicable law in the future. Will they be able to come up with a clear reference to the evidence immediately and confidently? That is reliability.
Legitimacy means that the structure of analysis and reasoning in an award should be logical. For example, first, one should identify the claims and defence in parties’ statements and locate parties’ dispute (ascertain the problem). Second, one should analyse the evidence, establish the facts, apply the law, and respond to the arguments in general (analysing the problem). Third, one should then rule over the dispute, tell right from wrong, and give resolution or make judgment (solving the problem).
Parties should be able to read the arbitrator’s logic in the reasoning. A syllogism including premise and conclusion should be clear in structure. Meanwhile, an award should avoid common logical mistakes such as inconsistencies, over-generalisation and backward reasoning. Logical structure distinguishes legal writing from casual writing. A well-structured award articulated with logical arguments is the essence of legitimacy.
Decency means tailored wording in an award, which will provide parties with a glimpse of the solemn figure of law. Moral comments or emotional expressions are unnecessary and leading. Words contained in an award must be objective and restrained. A good arbitrator may master the strength of the wording.
The art of wording also matters in many situations. Arguably, rulings in an award may be res judicata, or have the effect of issue preclusion in general. Parties will be bound in the same situation. It is always good to leave room for uncertain changes in the future without using certain words. For example, under Chinese law, when it comes to actively adjusting liquidated damages, a tribunal can say “there was no evidence to show that the claimant suffered loss as a result of the respondent’s breach of contract”, rather than “the claimant did not suffer any loss as a result of the respondent’s breach of contract”.
Wordings of an award should also allow consistent findings in similar cases and situations. Absolute wordings can easily harm the decency of arbitration if inconsistent decisions have to be made in similar situations. Although wording is subtle, it is the reflection of decent dispute resolution.
As a result of reliability, legitimacy and decency, fairness becomes the core of an award. Although the arbitration community celebrates a procedure-focused judicial review, due process, which is paramount to the success of arbitration, is oriented by the quest for justice.
An arbitral award should cut the cake fairly, but not do the math according to statutes, or just split the cake evenly. To achieve that, an arbitrator needs to gain a bigger picture of the dispute, assess parties’ evidence, statements, business background and the cause of dispute, etc., comprehensively telling right from wrong thereafter under a specific legal framework.
One tip for arbitrators is the assessment of “consideration” – if an interest is satisfied in a contractual relationship, what did the claiming party pay for it? If a burden is afforded by a party, what will be the corresponding benefits? In general, to ensure fairness in an arbitral award is the only way to fulfil parties’ expectations of dispute resolution, and to earn credibility for arbitration. Three in one is the body and soul of a credible arbitral award.
All in all, what makes a credible arbitral award makes a credible arbitration. Tribunals need to be conscious of the importance, pursue reliable, legitimate and decent fact-finding and reasoning, and thus let a fair award light the parties’ way out of their disputes.
Sun Yu is a senior case manager of Beijing Arbitration Commission/Beijing International Arbitration Center (BAC/BIAC). BAC/BIAC’s senior manager, Terence Xu, also contributed to the article