A  Text of the UNCITRAL Rule⁴

Article 35 of the UNCITRAL Rules provides:

1. 1.  Within thirty days after the receipt of the award, either party, with notice to the other party, may request that the arbitral tribunal give an interpretation of the award.

2. 2.  The interpretation shall be given in writing within forty–five days after the receipt of the request. The interpretation shall form part of the award and the provisions of article 32, paragraphs 2 to 7, shall apply.

(p. 881) B  Commentary

Unfortunately, in some cases, the terms of an award may be written unclearly, obscuring the arbitral tribunal's decision on the claims presented by the parties. Article 35 of the UNCITRAL Rules establishes a procedure whereby a disputing party may request the arbitral tribunal to provide an interpretation of a previously rendered award. Interpretation, as distinguished from other post–award proceedings, provides “clarification of the award” by resolving any ambiguity and vagueness in its terms.⁵ Interpretation may be particularly useful in the context of a continuing business relationship, where because of the award's unclear terms the parties require further guidance from the arbitral tribunal on the meaning of their future obligations.⁶

The interpretation process does not provide grounds for review “when a party seeks to reargue the case or disagrees with the conclusions reached by the Tribunal.”⁷ Nor does it allow a party to raise new arguments or introduce (p. 882) new evidence.⁸ These rules have been confirmed on numerous occasions at the Iran-US Claims Tribunal when Iran invoked Article 35 (along with Articles 36 and 37 in some cases)⁹ as a basis for the Tribunal to reconsider an adverse award. In every case, the Tribunal rejected Iran's request as being both beyond the scope of Article 35 and in violation of the rule of finality of awards contained in Article 32(2).

According to Article 35, upon the request of a party, an interpretation “shall be given.” This mandatory requirement naturally applies only to requests for interpretation that fall within the scope of Article 35, as determined by the arbitral tribunal. An arbitral tribunal is thus not required to render an interpretation in the absence of a real need to clarify the meaning of the award.¹⁰ It is nevertheless good practice for the arbitral tribunal to set forth its reasons for rejecting a request for interpretation in an explanatory decision. The arbitral tribunal has no authority to interpret an award sua sponte in the absence of a party's request.

What legal effect does a post–award interpretation have on the parties, when under many national arbitration laws an arbitral tribunal's jurisdiction over a dispute terminates once the award is rendered?¹¹ The drafters of Article 35 addressed two specific questions in this regard: (1) how does an arbitral tribunal retain post–award authority to render an interpretation, especially in a jurisdiction where interpretation is not expressly permitted,¹² and (2) how does an interpretation become part of the award for purposes of domestic and international enforcement?¹³ In answer to these questions, the (p. 883) Committee concluded that, upon adoption by the parties, Article 35 served as an express agreement to extend the arbitral tribunal's jurisdiction for purposes of interpretation.¹⁴ The Committee also specified in the final version of Article 35 that an interpretation “form[s] part of the award,”¹⁵ and required that an interpretation satisfy the same technical requirements for an award established in Articles 32(2) through 32(7).¹⁶ Although not expressly required in Article 35, an arbitral tribunal is advised to render an interpretation by a majority vote pursuant to Article 31.¹⁷

Whether an interpretation is enforceable as a part of the award is ultimately determined under the governing national arbitration law. The potential difficulty in ascertaining applicable national law standards is demonstrated by the Wintershall arbitration, conducted in The Hague under the Netherlands Arbitration Act 1986 (“Dutch Act”).¹⁸ The Dutch Act authorized the arbitral tribunal to make additional awards, but was silent as to interpretations.¹⁹ After receiving the tribunal's partial award on liability, the claimants requested an interpretation or, in the alternative, an additional award to clarify the meaning of certain provisions of the underlying oil exploration agreement. Apparently unsure whether the Dutch Act barred interpretations, the tribunal decided that its interpretation also could constitute an additional award, if necessary, pursuant to Article 37 of the UNCITRAL Rules and Article 1061(3) of the Dutch Act.²⁰

The Wintershall tribunal's approach was perhaps most prudent in light of the uncertainty as to the Dutch law. Although the tribunal's analysis of (p. 884) Dutch Law is debatable,²¹ an interpretation, even if not legally binding, nevertheless may usefully assist the parties in understanding and thus satisfying their obligations under the award.²² Moreover, the problem with the Wintershall award appears to have been not its ambiguity, but rather its incompleteness, a deficiency best rectified through an additional award under Article 37.²³

Article 35 includes two important time limits.²⁴ First, the parties have thirty days after receipt of the award to submit a request for interpretation. Committee representatives debated the appropriate time period. The representative of the Federal Republic of Germany proposed a three–year period, arguing that the need for interpretation typically arises at the time of execution of the award, which can be much later than the date on which the award was rendered.²⁵ The representative of Mexico opposed a longer deadline on grounds that it would create a longer period of uncertainty for the parties.²⁶ In the end, the Committee retained the thirty–day time limit to ensure that “the arbitrators would know reasonably quickly that some further action in respect of the award would be requested of them.”²⁷ (p. 885) The Iran-US Claims Tribunal has adhered strictly to the thirty–day deadline.²⁸

The second time limit requires the arbitral tribunal to render an interpretation within forty–five days of receiving a request by one or more parties. The forty–five–day time limit was designed to give the arbitrators sufficient time to take the steps necessary to interpret the award, including the commencement of new deliberations, if necessary.²⁹ The time limit also brings finality to the award within a short period of time, by ensuring that the entire process of interpretation is concluded within approximately six weeks from the time the award was rendered. In practice, many arbitral tribunals have adhered rather strictly to the forty–five–day time limit. A notable exception is the Iran-US Claims Tribunal, whose flexibility is perhaps attributable to its unique institutional setting in which most awards do not require international enforcement but rather are paid out of the Security Account funded by Iran.³⁰

C  Extracts from the Practice of the Iran-US Claims Tribunal

[Respondent] Bank Maskan also requested the Tribunal “to provide necessary interpretations” concerning that part of the Interim and Interlocutory Award which deals with interim measures.

Decisive in the counting as to when a party shall be deemed to have received the Award pursuant to the above–quoted rules is the date on which the Agent of the Government of that party has received the Award. The English text of the Award was received by the Agent of the Government of the Islamic Republic of Iran on 27 May 1985. The Farsi text of the Award was received by the Agent of the Government of the Islamic Republic of Iran on 8 August 1985. It shall be deemed to have been received also by Bank Mashan on 8 August 1985. The request for interpretation and correction filed on 13 September 1985 was thus not made within “thirty days after the receipt of the award,” as required by Articles 35 and 36. The Tribunal therefore dismisses the request for having been filed too late.

(p. 886) Component Builders, Inc. and Islamic Republic of Iran, Decision No. DEC 40–395–3 (18 Dec 1985), reprinted in 9 Iran-US CTR 404, 405 (1985–II).

As noted above, the English text of Partial Award No. 186–302–3 was received by the Agent of the Islamic Republic of Iran on 20 August 1985, and the Farsi version on 16 December 1985. Accordingly, the Civil Aviation Organization's request filed on 19 March 1986 clearly was not made within “30 days after the receipt of the Award” as required by Articles 35, 36 and 37. The Tribunal therefore dismisses the request for having been filed too late. See Component Builders, Inc. and The Islamic Republic of Iran, Decision No. DEC 40–395–3 (18 Dec. 1985); Harnischfeger Corporation and Ministry of Roads and Transportation, et al., Award No. 175–180–3 at 21–22 (26 April 1985).

International Technical Products Corp. and The Islamic Republic of Iran, Decision No. DEC 41–302–3 (16 Jun 1986), reprinted in 11 Iran-US CTR 182, 183 (1986–II)

[T]he request of Ministry of Post, Telegraph and Telephone filed on 13 June 1986 was not made within 30 days after the receipt of the Award as required by Article 35 of the Tribunal Rules and is consequently unadmissible [sic].

In view of the above, the Tribunal does not reach the question as to whether the submission could be considered a proper request for interpretation pursuant to the Tribunal Rules.

McCollough & Company and Ministry of Post, Telephone and Telegraph, Decision No. DEC 44–89–3 (7 Jul 1986), reprinted in 11 Iran-US CTR 287, 287–88 (1986–II).

[T]he Tribunal finds that the Request does not identify any ambiguity in the Award or other basis upon which an interpretation within the meaning of Article 35 can be based.

Ford Aerospace & Communications Corp., et al. and Air Force of the Islamic Republic of Iran, Decision No. DEC 47–159–3 (2 Oct 1986), reprinted in 12 Iran-US CTR 304, 305 (1986–III).

The Tribunal finds that the wording used in the Award No. 229–10173–3 exactly reproduces the language of Article III, paragraph 3 of the Claims Settlement Declaration and therefore is more appropriate than the formulation proposed by the Agent. For this reason the Tribunal (p. 887) cannot accept the opinion expressed by the Agent that the wording adopted would have the effect of altering the identity of the Claimant in Case No. 10173 which was presented pursuant to Article III, paragraph 3, of the Claims Settlement Declaration.

For the foregoing reasons, the Tribunal determines that no correction or interpretation of the Award is warranted and denies the Request.

In light of this conclusion, the Tribunal need not determine whether the Request for Correction and Interpretation is of the nature specified in Article 35 and Article 36 of the Tribunal Rules.

Picker International Corp. and Islamic Republic of Iran, Decision No. DEC 48–10173–3 (7 Oct 1986), reprinted in 12 Iran-US CTR 306, 307 (1986–II).

The Tribunal finds that while the Respondents' submission reargues certain aspects of the Case and disagrees with various conclusions of the Tribunal, it fails to point to any element of the Award that is ambiguous. The dispositif of the Award is specific and detailed. Moreover, examination of the text of the Award shows that there is no ambiguity with respect to any of the four items mentioned in the Respondents' submission. In particular, (i) the Award is clear on its face as to the denial of the Respondents' request for appointment of an expert to determine the value of the shares of the Zamzam Companies and as to the reasons for that denial …; (ii) the Award is unambiguous in determining that the Claimant was in the circumstances entitled to accelerate the Promissory Notes and quotes the explicitly interrelated provisions of paragraphs 3(f) and 4 of the Main Agreement which established that right …; (iii) the Award plainly notes that New York law governs the Loan Agreements …; and (iv) the Award sets forth the factors the Tribunal considered in determining that amount… . Thus, there is nothing in the Award that requires interpretation within the meaning of Article 35, paragraph 1, of the Tribunal Rules.

Pepsico, Inc. and Islamic Republic of Iran, Decision No. DEC 55–18–1 (19 Dec 1986), reprinted in 13 Iran-US CTR 328, 329–30 (1986–IV).

[T]he legislative history of Article 35, paragraph 1 of the UNCITRAL Arbitration Rules, to which the present Article is identical, indicates that the term “interpretation of the award” was intended to mean clarification of the award”. Thus Article 35, paragraph 1, was intended to apply only where an award contains language which is ambiguous. The dispositif of the Interim Award is specific and unambiguous. Moreover, the (p. 888) Tribunal finds no ambiguity with respect to its use of the term “status quo.” Thus, there is nothing in the Interim Award that requires interpretation within the meaning of Article 35, paragraph 1, of the Tribunal Rules.

Paul Donin de Rosiere, et al. and The Islamic Republic of Iran, Decision No. DEC 57–498–1 (10 Feb 1987), reprinted in 14 Iran-US CTR 100, 101–02 (1987–I).

Insofar as the Request allegedly seeks an interpretation of the Award, the Tribunal finds that it does not identify any aspect of the Award where the Tribunal's interpretation is necessary… . These requested interpretations largely parallel the alleged computational errors, and … would require the Tribunal to review or revise its Award. Consequently the requested interpretations fall outside the scope of Article 35.

American Bell International, Inc. and Islamic Republic of Iran, Decision No. DEC 58–48–3 (19 Mar 1987), reprinted in 14 Iran-US CTR 173, 174 (1987–I).

1. 1.  On 6 April 1987, the Ministry of National Defence submitted a request for interpretation of certain portions of Award No. 292–353–2, pursuant to Article 35 of the Tribunal Rules.

2. 2.  Article 35 of the Tribunal Rules provides that a request for interpretation of an award be made “within thirty days after the receipt of the award.” Furthermore, according to Article 2(3) of the Tribunal Rules, a document “shall be deemed to have been received by [the] arbitrating parties when it is received by the Agent of their Government.”

3. 3.  The Tribunal observes that Award No. 292–353–2 was served on the Agent of the Government of the Islamic Republic of Iran on 12 February 1987. Accordingly, the request of the Ministry of National Defence filed on 6 April 1987 was not made within thirty days after the receipt of the Award as established by Article 35 of the Tribunal Rules and therefore is inadmissible.

FMC Corporation and The Ministry of National Defence, et al., Decision No. DEC 60–353–2 (27 Apr 1987), reprinted in 14 Iran-US CTR 261, 261–62 (1987–I).

The Respondents contend that the Award requires interpretation “because it does not specify whether the parties' relationship was based on the purchase or sale of goods or whether it was based on the distributorship and commission. The Respondents refer to and rely on para 21 (p. 889) of the Award, in which the Tribunal, inter alia, describes the Parties' relationship until 1978. The Tribunal notes, however, that the claim at issue does not pertain to any agreement prior to 1978. As specified in para 21 it arises out of “an agreement for the sale and purchase of certain pharmaceutical products” entered into in 1978. The sale and purchase at issue is pursuant to “Order No. 81” detailed in para 25 of the Award. The Tribunal therefore concludes that the Award does not require interpretation in this respect.

Endo Laboratories, Inc. and Islamic Republic of Iran, Decision No. DEC 74–366–3, (25 Feb 1988), reprinted in 18 Iran-US CTR 113, 113–14 (1988–I).

The Claimants' request seeks an “interpretation and correction” of paragraphs 98 and 177 of the Partial Award… . [P]aragraphs 98 and 177 are clear as to the granting of interest on the $2,948,619.50 that the Tribunal awards in the Partial Award. It is also self–evident that the jurisdiction that the Tribunal retains “over $1,564,537.36 of Uiterwyk's claim” includes jurisdiction to grant interest on that amount, in accordance with the Tribunal's practice of granting interest on claims and consistent with the awarding of interest on the other claims granted in this Case.

The Tribunal has held that Article 35, paragraph 1 was intended to apply only when an award contains ambiguous language… . Paragraphs 98 and 177 are specific and unambiguous. Accordingly, the Tribunal finds that paragraphs 98 and 177 do not require interpretation within the meaning of Article 35, paragraph 1.

Uiterwyk Corporation and Islamic Republic of Iran, Decision and Correction to Partial Award (22 Nov 1988), reprinted in 19 Iran-US CTR 171, 172–73 (1988–II).

Article 35 permits a party to request an explanation of ambiguous language contained in an Award… . Iran has pointed to no ambiguity in the Award. Moreover, its request merely repeats an argument previously made before the Tribunal. As such, the request constitutes an impermissible attempt to reargue an aspect of the Case… .

The Tribunal therefore determines that no interpretation of the Award is warranted.

Phibro Corporation and Ministry of War–Etka Co. Ltd, Decision No. DEC 97–474–3 (17 May 1991), reprinted in 26 Iran-US CTR 254, 254–55 (1991–I).

(p. 890)

1. 1.  On 12 August 1991, the Claimant, Norman Gabay, also known as Nourollah Armanfar, timely filed a letter requesting an “interpretation” of Award No. 515–771–2 (the “Award”), filed on 10 July 1991. In the Award, the Tribunal found that the Claimant had failed to prove that his claims for the expropriation of his properties by the Respondent were outstanding on the date of the Algiers Declarations, 19 January 1981. Accordingly, the Tribunal dismissed the claims for lack of jurisdiction.

2. 2.  In his letter, the Claimant states that

   … the most important aspect of the Award is the date of expropriation. I feel … that several key points regarding the date of expropriation and the evidence relating to those points have been overlooked in reaching the decisions on which the Award [i]s based.

   The Claimant goes on to evaluate evidence in the record that, in his opinion, would point to a finding that the taking of his properties by the Respondent occurred before 19 January 1981.

3. 3.  The Claimant concludes by stating that “[t]his letter is not intended as a retrial, and it is solely for purposes of clarification.”

4. 6.  Nothing in the Claimant's request falls within the scope of Articles 35, 36, or 37 of the Tribunal Rules. Article 35 permits a party to request from the Tribunal an explanation of ambiguous language contained in an Award… . The Tribunal cannot identify any ambiguous language in the Award, and the Claimant has pointed to none. Accordingly, there is nothing to interpret.

Norman Gabay and The Islamic Republic of Iran, Decision No. DEC 99–77–2 (24 Sep 1991), reprinted in 27 Iran-US CTR 194, 195 (1991–II) (citations omitted).

1. 2.  The Tribunal finds that neither the Tribunal Rules nor its practice contemplate post–award proceedings over the merits of an award. According to the Tribunal Rules, after a final Award has been rendered, the Tribunal may only “give an interpretation of the award” (Article 35), correct “any errors in computation, any clerical or typographical errors, or any errors of similar nature” (Article 36), or “make an additional award as to claims presented in the arbitral proceedings but omitted from the award” (Article 37).

2. 3.  Nothing in the Claimant's request falls within the scope of Articles 35, 36, or 37 of the Tribunal Rules. Indeed, the Tribunal has (p. 891) consistently held that there is no basis in the Tribunal Rules, or elsewhere, for the Tribunal to review its own awards when a party seeks to reargue the case or disagrees with the conclusions reached by the Tribunal… .

Parviz Karim–Panahi and The Government of the United States of America, Decision No. DEC 108–182–2 (27 Oct 1992), reprinted in 28 Iran-US CTR 318, 318 (1992).

1. 1.  The Tribunal notes the Islamic Republic of Iran's “Request to Order the United States to Comply with Award No. 586–A/27–FT dated 5 June 1998,” filed on 24 July 1998 (Doc. 40) (“Request”).

2. 2.  According to the Tribunal Rules, after a final award has been rendered, the Tribunal may “give an interpretation of the award” (Article 35), correct “any errors in computation, any clerical or typographical errors, or any errors of similar nature” (Article 36), or “make an additional award as to claims presented in the arbitral proceedings by omitted from the award” (Article 37). Westinghouse Electric Corporation and Islamic Republic of Iran, Decision No. DEC 127–389–2 (23 Apr. 1997). Iran's Request does not fall within the scope of Articles 35, 36, or 37 of the Tribunal Rules. Nothing in the Tribunal Rules provides a basis for granting the Request, which is therefore denied.

The Islamic Republic of Iran and The United States of America, Case No. A/27, Full Tribunal, Order of 5 Aug 1998, at 1.

D  Extracts from the Practice of NAFTA Tribunals

1. 1.  By its Request for Interpretation, Methanex seeks from the Tribunal an interpretation of the Tribunal's Partial Award in respect of four matters:

   1. (i)  The definition of “Legally Significant Connection”, cited from Paragraph 147 of the Partial Award (page 62);

   2. (ii)  The contents and scope of the “Fresh Pleading” ordered by the Tribunal, cited from Paragraph 172(5) of the Partial Award (page 74);

   3. (iii)  The requirements of the Tribunal as to the “Evidence” to be submitted by Methanex, cited from Paragraphs 163, 164 & 165 of the Partial Award (pages 70–71); and

   4. (iv)  The nature and timetable of the “Future Proceedings”, cited from Paragraph 168 of the Partial Award (page 70).

   (p. 892)

   We shall consider each of these matters in turn, subject to a general preliminary comment.

2. 2.  … It is well settled that such a request [under Article 35] is limited to an interpretation of the award in the form of clarification; and that it cannot extend to a request to modify or annul the award or take the form of an appeal or review of the award. Indeed, Methanex disclaims expressly any intention of “relitigating any issue the Tribunal has already decided”: see pages 1–2 of Methanex's letter.

3. 3.  In our view, Methanex's Request does not fall within the scope of Article 35. Accordingly, we decline to treat it as such; and this response does not form part of the Partial Award. Nonetheless, it can do no harm and possibly some good if we were to address certain of the points raised by Methanex, albeit outwith Article 35 of the UNCITRAL Rules.

Letter from the Tribunal to the Parties dated 25 September 2002, paras 1–3, Methanex Corp. and The United States of America, available at http://www.state.gov/s/l/c3439.htm.

E  Extracts from the Practice of Ad Hoc Tribunals

1. 4.  The Tribunal recognizes, as pointed out in Clifford Chance's Further Observations (the “Further Observations”) of May 16, 1988 that the Netherlands Arbitration Act 1986 does not provide for an interpretation of an award and that the Minister of Justice's report referred to in paragraph 11 of the Further Observations indicates that the Minister of Justice does not propose to insert in the Act the possibility of an interpretation of an award by the Tribunal. However, the Parties by their agreement of October 22, 1986, signed by duly authorized representatives of the Parties, adopted as procedural rules the UNCITRAL Rules adopted by the United Nations General Assembly on 15 December 1976, and Article 35 of these Rules provides for an interpretation of the award and Article 37 for an additional award, subject to certain notice provisions which have been fully satisfied in this case. It is the Tribunal's view that this agreement governs the arbitration since the UNCITRAL Arbitration Rules are not in conflict with any provision of the Netherlands law from which the Parties cannot derogate (Article 1–2. of the UNCITRAL Arbitration Rules) and Article 1036 of the Netherlands Arbitration Act 1986, providing that “Subject to the provisions of this Title, the arbitral proceedings shall be conducted in (p. 893) such manner as agreed between the parties …”. There is no provision in the Netherlands Arbitration Act 1986 expressly excluding the Parties from agreeing to an interpretation and their agreement under UNCITRAL Article 35 is, in the Tribunal's opinion, controlling.

   It is further the view of the Tribunal that Article 1059 of the Netherlands Arbitration Act 1986 providing for the res judicata effect of a partial award in no sense deprives the Parties of the ability to agree to an interpretation of a partial award under Article 35 of the UNCITRAL Rules. The Tribunal agrees with the Claimants that the “principle of res judicata prevents the re–opening of necessarily decided points. It does not prevent the clarification of a decision nor the giving of a decision on points which an award has left undecided.”

   The Tribunal has also noted that in his preface to the Netherlands Arbitration Act 1986, the Minister of Justice of The Netherlands, F Korthals Altes, referred to the new Act duly taking into account the Model Law on International Commercial Arbitration, adopted in 1985 by the United Nations Commission on International Trade Law (UNCITRAL), which expressly provides in Article 33 for an interpretation of an award if so agreed by the parties [Article 33(1)(b)].

   Finally, while in no sense controlling, the Respondent by recognizing in its letter of April 28, penultimate paragraph, that Article 40–4. of the UNCITRAL Rules prohibits the charging of additional fees in respect of an interpretation, in effect, recognizes that Article 35 is applicable.

2. 5.  Nonetheless, in view of the contention by the Respondent that the Tribunal is without authority under Netherlands law to interpret its award, the Tribunal has determined whether the substance of the attached interpretation could be included in an additional award under Article 37 of the UNCITRAL and Article 1061 of the Netherlands Arbitration Act 1986, and, as required by Article 1061(3) of the Netherlands Arbitration Act 1986, the Tribunal has given to the Parties an opportunity to be heard on this question, in particular, the view of the Claimants as set forth in paragraph 14 of the Claimants' submissions of April 14, 1988 that “the inevitable and logical consequence of the Respondent's counterclaim is that claims and matters related to Article XV.3, Third Alternative, were before the Tribunal for decision.” These included clarification of how the cost recovery and production sharing principles of Article XIII of the (p. 894) EPSA apply to a non–associated Natural Gas project under the third paragraph of Article XV.3.

   It is the determination of the Tribunal that the substance of the attached interpretation could be included in an additional award under Article 37 of the UNCITRAL rules and/or Article 1061 of the Netherlands Arbitration Act 1986.

3. 6.  The Tribunal hereby incorporates into and makes a party of this Final Award its interpretation of the Partial Award and/or additional award, issued today's date.

Wintershall AG et al. and The Government of Qatar, Final Award (Ad Hoc UNCITRAL Proceeding, 31 May 1988), reprinted in (1989) 28 ILM 834, 834–36.

1. 6.  In summary, the Tribunal is of the view that the Claimants' application for interpretation is a request that the Tribunal should decide matters falling within the scope of the existing reference to arbitration and has determined that under Article XXXIV of EPSA a “difference or dispute” between the Respondent and Claimants arose during the hearings and exchange of submissions by the Parties concerning the interpretation of EPSA and, accordingly, it is within the Tribunal's jurisdiction to resolve this difference or dispute.

Wintershall AG, et al. and The Government of Qatar, Interpretation of Partial Award on Liability (Ad Hoc UNCITRAL Proceeding, 31 May 1988), reprinted in (1989) 28 ILM 837, 838.

A  Text of the UNCITRAL Rule³¹

Article 36 of the UNCITRAL Rules provides:

1. 1.  Within thirty days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature. The arbitral tribunal may within thirty days after the communication of the award make such corrections on its own initiative.

(p. 895)

2. 2.  Such corrections shall be in writing, and the provisions of article 32, paragraphs 2 to 7, shall apply.

B  Commentary

Unintentional errors, such as a misplaced decimal point or a misspelled party name, may significantly distort the intended outcome of an arbitral dispute, and possibly undermine the validity of the award. Article 36 permits the arbitral tribunal to correct computational, clerical, typographical or similar errors in an award, where necessary.

Correction is limited to the “restoration of the award's proper contents as adopted by the [arbitral tribunal].”³² Thus, Article 36 permits correction of errors in the award that the arbitral tribunal made unintentionally or heedlessly. When the Iran-US Claims Tribunal granted requests for correction under Article 36, for example, it was in large measure to correct for faulty mathematical calculations³³ and typographical errors.³⁴ “Errors of a similar nature,” also correctable under Article 36, may consist of a misspelled party's name, inaccurate dates, or mistranslations.³⁵

The line between correction of a computational or clerical error and revision of a reasoned conclusion is seen in the Picker and Petrolane awards.³⁶ In Picker, the respondent sought a correction of the wording used by the Tribunal to identify the claimant. In Petrolane, the Respondent sought a correction of the Tribunal's characterization of an earlier decision of the Tribunal as an “award.” In these cases, the request for correction did not involve an unintended calculation, mistake or typographical error on the part of the Tribunal. In both cases, the Tribunal understood full well the choice it had made and thus the requests were outside the scope of Article 36.

For reasons similar to those discussed above with regard to interpretation, Article 36 extends the arbitral tribunal's authority for purposes of correcting a previously rendered award, if necessary. A correction forms part of the award and thus may be enforced domestically and internationally along with (p. 896) the award.³⁷ Accordingly, a correction should comply with Article 32(2) to (7), as required by Article 36,³⁸ and the rule on majority voting contained in Article 31.

The arbitral tribunal's power of correction applies to “awards.” Thus, partial, interlocutory, interim and final awards are all capable of correction.³⁹ In one unique case, the Iran-US Claims Tribunal applied Article 36 to correct not an award, but an order. The Tribunal had issued an order erroneously terminating the proceedings with respect to a certain group of claims. Without an express procedural mechanism to fix its mistake, the Tribunal, “using by analogy its power under Article 36 of the Tribunal Rules,” corrected the error and nullified the termination.⁴⁰

Like other post–award mechanisms under the Rules, the correction process is not a means for revisiting the substance of the award or for reconsidering the arbitral tribunal's reasoning.⁴¹ The Iran-US Claims Tribunal, for example, found that Article 36 did not contemplate correction for alleged errors regarding “the standard of evidence applied by the Tribunal,”⁴² “the Tribunal's evaluation of the evidence,”⁴³ or the Tribunal's characterization of the underlying dispute in an award of interim measures of protection.⁴⁴

Two technical rules regulate the correction process. First, the party that requests correction must notify all other disputing parties of the request. Implied in this requirement is the right of the non–requesting party to comment on or contest his opponent's request for correction. Second, the correction process is subject to a thirty–day time limit; either the parties must request a correction within thirty days of receiving the award, or the arbitrators must decide sua sponte to correct the award within thirty days of its (p. 897) communication to the parties.⁴⁵ In most cases, the task of assessing and correcting any technical errors in the award can be accomplished in this time frame.⁴⁶

In unfortunate circumstances, a party might attempt to abuse the correction process for purposes of delaying or disrupting the arbitral proceedings. The thirty–day time limits established in Article 36 provide ways of minimizing the potential for dilatory tactics.⁴⁷ Another perhaps more effective safeguard is the arbitrators' inherent discretion to determine whether to apply the correction process. As the commentary on the Revised Draft explains:

Even in cases where the arbitrators receive a timely request from one or both of the parties that an error in the award is corrected, the arbitrators have full discretion to decide whether or not they wish to issue such a correction (e.g. the arbitrators may decide that the alleged error whose correction was requested was not an error at all).⁴⁸

Similarly, the arbitral tribunal has authority to decide against correction if an error is genuine but has no material impact on the validity of the award.

The Iran-US Claims Tribunal has established a useful practice for correcting an award. When applying Article 36, the Tribunal typically issues a (p. 898) “Correction to Award,” which sets forth its decision on each of the alleged errors at issue. Appended to the “Correction to Award” are the corrected pages of the award for the parties' files and a signature page that includes the signatures of at least a majority of the arbitrators in favor of the correction.⁴⁹ The “Correction to Award” is dated, but that date has no legal effect on the original date of the award, which remains the date of the signing of the award.⁵⁰

C  Extracts from the Practice of the Iran-US Claims Tribunal

A  Text of the UNCITRAL Rule⁵¹

Article 37 of the UNCITRAL Rules provides:

1. 1.  Within thirty days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.

2. 2.  If the arbitral tribunal considers the request for an additional award to be justified and considers that the omission can be rectified without any further hearings or evidence, it shall complete its award within sixty days after the receipt of the request.

3. 3.  When an additional award is made, the provisions of article 32, paragraphs 2 to 7, shall apply.

B  Commentary

Article 37 authorizes the arbitral tribunal to make an additional award “as to claims presented in the arbitral proceedings but omitted from the award.” The UNCITRAL drafters observed that in most jurisdictions an award that failed to address all the claims raised in arbitration would not be recognized or enforced.⁵² Article 37 thus provides the arbitrators a mechanism for completing their mandate, when necessary, by making an additional award that resolves all remaining claims.⁵³ As the travaux préparatoire note, in the absence of such a provision, “a lengthy, costly arbitration might be totally invalidated because the arbitrators inadvertently failed to rule in their award on each part of every claim raised during the arbitral proceedings.”⁵⁴

The drafters intended Article 37 to serve as an express agreement by the parties to extend the arbitrators' jurisdiction over the dispute to make an additional award.⁵⁵ Such agreement may or may not be necessary in practice depending on the requirements of the applicable national arbitration law. In some jurisdictions, an award that fails to address all claims is not a final award; thus the arbitral tribunal's jurisdiction over the dispute remains in (p. 909) force until all outstanding claims are resolved.⁵⁶ Nevertheless, an additional award is an “award” within the meaning of the Rules and thus should comply with Article 32(2) through 32(7), as required by Article 37, and the rule on majority voting contained in Article 31.⁵⁷

Professor Sanders observed during Committee negotiations that Article 37 was intended to cover “obvious cases of omission” in which the arbitrators failed to render a complete award.⁵⁸ Examples of such cases may include when the arbitrators have failed to fix or apportion the costs of arbitration,⁵⁹ rule on a claim for interest payments, or adjudicate in the award a counter–claim that was asserted without substantial supporting evidence.⁶⁰ As noted in Committee discussions, Article 37 obviously has no effect in cases of deliberate omission where an arbitral tribunal has for specific reasons intentionally chosen not to address a claim or issue in the award.⁶¹ Nevertheless, to avoid any misunderstandings, it is good practice for an arbitral tribunal to document in the award the disposition of each of the parties' respective claims, no matter how small or inconsequential their bearing is on the outcome of the case.

Article 37(2) grants the arbitral tribunal wide discretion to determine if a request for an additional award is “justified.”⁶² The arbitrators, for example, may reject a request on grounds that there was no omission of claims,⁶³ that (p. 910) the award sufficiently addressed the alleged omissions,⁶⁴ and that the party's request generally falls outside the scope of Article 37.⁶⁵ The arbitrators have no express authority to make additional awards sua sponte, although arguably they must inform the parties of the discovery of any important omissions as part of their general duty to ensure that validity and enforceability of the award.⁶⁶

Article 37 imposes two notable limitations on the arbitral tribunal's power to complete the award. First, an additional award may address only “claims presented in the arbitral proceedings.” Thus, the arbitrators are not authorized to make an additional award to address a claim that was not raised legitimately in the parties' written submissions or at the hearing, even if the parties jointly request such action. If further arbitration is required on new or related issues, the parties must initiate a new arbitration.

The second limitation is that the arbitral tribunal can make additional awards only if the omitted claim can be redressed “without any further hearing or evidence.”⁶⁷ This limitation was the subject of intense debate in Committee negotiations. The representative of the Soviet Union opposed the clause. He argued that if the arbitrators were to blame for not addressing the omitted claim or taking the necessary evidence, it would be unfair to require the parties to initiate a new arbitration to resolve the remaining claims.⁶⁸ On the other side, the representative of the Federal Republic of Germany observed that without the clause parties might abuse the completion process by attempting to present new claims.⁶⁹ The Committee retained the clause, concluding that any downsides would be offset by the parties' right, pursuant to Article 29, to reopen the hearings in certain cases.⁷⁰

The Commission's position on the permissibility of further hearings and evidence to complete an award changed notably in drafting the Model Law. Article 33(3) of the Model Law, which is virtually identical to Article 37 of the Rules in all other respects, omits the limiting clause “without any further hearing or evidence.”⁷¹ The change was made because UNCITRAL recognized that without the ability to gather additional evidence to address an (p. 911) omission in an award, the entire award could be nullified in set aside proceedings.⁷² The parties to a dispute accordingly may wish to modify Article 37 of the Rules to conform to Article 33(3) of the Model Law.⁷³

The process for completing an award under Article 37 is subject to two time limits.⁷⁴ First, a party has thirty days after receipt of the award to submit a request for an additional award.⁷⁵ Second, if the arbitral tribunal chooses to grant a party's request, it has sixty days from the date of receipt of the request to render the additional award.⁷⁶

C  Extracts from the practice of the Iran-US Claims Tribunal

A  Commentary

A debatable point with long lineage is an international arbitration panel's inherent power to reconsider its award in the face of alleged due process or public policy violations; typically fraud. The UNCITRAL Rules, like most arbitral rules, provide no explicit authority to the panel to reconsider its award.⁷⁷ Article 32(2) provides that an award is “final and binding” and “the parties undertake to carry out the award without delay.”⁷⁸ Articles 35, 36 and (p. 915) 37, as discussed above, invest the panel with only limited jurisdiction to interpret, correct and supplement the award. Therefore, absent inherent power for the panel to reconsider an award, an unhappy party must turn to a national court under the relevant arbitration laws.⁷⁹

The key to approaching this debate is found in the nature of inherent powers. Articles 35, 36 and 37 are examples of explicit powers given to the Tribunal. Implied powers could be read into a certain set of arbitration rules, but also could be expressly denied the tribunal. Inherent powers, however, imply something more than implied powers. Something inherent is something necessarily a part of the object in question. Inherent powers in this sense are those powers that are not explicitly granted to the tribunal but must be seen as a necessary consequence of the parties' fundamental intent to create an institution with a judicial nature. Inherent powers may be limited or denied by the parties, but the more such powers are necessary to the judicial nature of the tribunal, then the more strictly the limitation or denial is construed so as to preserve the overall intention of the parties. The debate then becomes precisely what powers are necessary for an institution to possess a judicial nature.

Two further points must now be added. First, much of the long lineage of inherent powers comes from interstate arbitration. One should not simply assume that the interstate precedents are applicable to the international commercial arbitration context. As a process, interstate arbitration differs from international commercial arbitration in that it is not envisioned that interstate arbitration will be subject to review in national courts. The entire international commercial arbitration process, unless there is settlement, in contrast involves an arbitration followed by certain procedures before national courts. It is true that the lineage regarding inherent powers now extends into the international commercial arbitration field. In an ad hoc arbitration under the UNCITRAL Rules, one distinguished panel (Judge Stephen M Schwebel, Professor Don Wallace, and Monroe Leigh, Esq.) found:

Nevertheless, a court or Tribunal, including this international arbitral Tribunal, has an inherent power to take cognizance of credible evidence, timely placed before it, that its previous determinations were the (p. 916) product of false testimony, forged documents or other egregious “fraud on the Tribunal.” [Cites to interstate arbitrations decisions deleted.] Certainly if such corruption or fraud in the evidence would justify an international or a national court in voiding or refusing to enforce the award, this Tribunal also, so long as it still has jurisdiction over the dispute, can take necessary corrective action. See the Statute of the International Court of Justice, Art. 61 (permitting revision of an award upon the subsequent discovery of a new decisive fact); ICSID Convention Art. 51 (same); US Arbitration Act, 9 USC Sect. 10 (permitting judicial annulment of an arbitral award “procured by corruption, fraud or undue means”).

The present Tribunal would not hesitate to reconsider and modify its earlier award were it shown by credible evidence that it had been the victim of fraud and that its determinations in the previous award were the product of false testimony. However, no such evidence has been adduced. As in many complex cases, this Tribunal has been required to weigh and resolve occasional inconsistencies in the evidence of both sides in this arbitration, and to come to its best determination of the relevant facts. Nevertheless, the Tribunal is satisfied that the material facts on which it based its previous award on jurisdiction and liability, as well as the present award on damages and costs, are sufficiently explained and proved by credible evidence.⁸⁰

As appears almost always to be the case, the arbitrators acknowledge an abstract authority to reopen awards in the face of severe misconduct by the winning party, but do so in cases where such misconduct does not exist.

One must ask, however, why the existence of a power in national courts to void or to refuse to enforce an award “certainly” means that the arbitral panel also has that power. Indeed, the opposite conclusion is suggested by the second point to be made: The notion of inherent powers could be easily abused. It is a sense of necessity that justifies a tribunal invoking inherent powers; it is the sense of necessity that allows the acceptance of such powers by the parties. Together these two points suggest that it may not be necessary for an international commercial arbitration panel to invoke an inherent power if that necessary part of the whole process is available in either the courts of the place of arbitration or the place where enforcement is sought.⁸¹

(p. 917) The Iran-US Claims Tribunal, sometimes viewed as interstate arbitration and sometimes viewed as international commercial arbitration,⁸² followed the general tendency of suggesting, while not in fact needing to wield, an inherent power to reconsider its awards in certain extreme circumstances. The Tribunal was faced with repeated requests for reconsideration, fashioned more or less ingeniously under Articles 35–37, but steadfastly defended the finality of awards issued under Article 32(2).⁸³ The Tribunal seemed to endorse the existence of inherent authority to reopen, but never faced a fact situation sufficiently severe to warrant exercising it.

The only extreme circumstances mentioned specifically by the Tribunal were fraud, forgery or false testimony.⁸⁴ In the 1983 Morris decision, Chamber One stated:

Whether a Chamber or the Full Tribunal, despite the absence of any express provision, has inherent power to review and revise an Award under exceptional circumstances–e.g. when an Award was based on forged documents or perjury–is a question which the Tribunal does not need to reach in this decision.⁸⁵

In the oft–quoted Dames & Moore decision denying Iran's request for reconsideration, based in part on Articles 35 and 37, on the grounds that Dames & Moore had obtained its award through fraud and forgery, Chamber Three of the Tribunal stated:

The implied or inherent power of an international claims tribunal in this area is an issue which has been subjected to learned analysis, and limited judicial scrutiny, with wholly inconsistent results. The instant request for reopening and reconsideration, however, falls well short of justifying any such effort to ascertain the precise balance struck between finality of Tribunal dispositions, on the one hand, and the integrity of its processes on the other.⁸⁶

Although fraud was thus referred to as a circumstance perhaps addressed by an inherent power to reconsider, other circumstances, given the Tribunal's (p. 918) silence, apparently did not rise to that level of concern. In Eastman Kodak, “the Respondent describe[d] the legal basis of its objection as ‘the failure to observe the Tribunal's findings in the [earlier] Partial Award, … and the conflict and inconsistency between the Tribunal's findings in the Partial and Final Awards.’ ”⁸⁷ In other words, it was alleged that the Tribunal's Final Award was inconsistent with, and therefore breached the finality of, the Partial Award. The Tribunal disposed of the request simply noting that this objection did not fall within the scope of Article 35, 36 or 37. The Tribunal did not consider whether an inherent power exists in such a case:

… Insofar as the Respondent's request constitutes an attempt to reargue certain aspects of the Case on which the Respondent disagrees with the Tribunal's conclusions in the Final Award, there is no basis in the Tribunal Rules or elsewhere for review of an award on such grounds.⁸⁸

Interestingly, the Tribunal did not have to reopen the one award known to have been based on fraud, the now infamous Gordon Williams case.⁸⁹ In that case, the Tribunal awarded “Mr. Williams” an award of approximately US $300,000. In the course of attempting to pay “Mr. Williams” his award, the New York Federal Reserve Bank received payment instructions from six different “Mr. Williams” and representatives. A New York court ultimately determined that an Iranian national had impersonated a dead US national to pursue the claim. Because the Tribunal unequivocally lacked jurisdiction over claims by Iranian nationals against Iran, the court ordered the New York Fed to return the funds to the Tribunal Security Account. Therefore justice was done without the need for the Tribunal to reopen and nullify its award. The Gordon Williams case demonstrates that there are dramatically real instances of fraud in international commercial arbitration, but that they also are not likely to go unnoticed or unremedied.⁹⁰

(p. 919) B  Extracts from the Practice of the Iran-US Claims Tribunal

C  Extracts from the Practice of NAFTA Tribunals

1. 33.  Turning to the issue under Article 15(1) of the UNCITRAL Rules, there is nothing there to suggest that an arbitration tribunal has a broad jurisdiction to reconsider a final and binding award that it has already made. (The possible exception for fraud by a party is here irrelevant). To the contrary, both the ordinary meaning and the context of Article 15(1) lead to the opposite conclusion. (p. 925) Article 15(1) is located in Section III of the Rules, “Arbitral Proceedings”; and it is a general provision that regulates the conduct of the arbitral proceedings. By contrast, Article 32 is to be found in Section IV, “The Award”; and it is concerned with the form and effect of an award. Article 15(1) cannot be read as creating such a huge derogation from Article 32; it has a significantly different subject–matter. Moreover, Article 15(1) requires that a party be given a full opportunity of presenting its case “at any stage of the proceedings”. This accepts that arbitral proceedings may comprise differing stages, as also appears from Article 15(2), and a given stage in the proceedings may of course be brought to an end by a final and binding award. It would both undermine Article 32 and lead to an inequality between the parties if at any time the losing party could seek to re–litigate matters contained in an award simply by invoking Article 15(1) of the UNCITRAL Rules.

Methanex Corp. and The United States of America, Award (NAFTA Chapter Eleven, 3 Aug 2005), at 19 (Part II, Chapter E), available at http://www.state.gov/s/l/c3439.htm. (some footnotes omitted.)

D  Extracts from the Practice of Other Tribunals

1. [32]  As provided in Art. 32(2) of the UNCITRAL Rules, the award on jurisdiction and liability which this Tribunal issued on 27 October 1989 was and is “final and binding on the parties.” The UNCITRAL Rules make no provision for reconsidering an award. Arts. 35, 36 and 37 provide that within thirty days of an award a party may request “interpretation” of an award, may request correction of clerical or typographical errors, or may request an additional award covering issues omitted from the award. The present request for reconsideration was not made pursuant to any of these articles, and (apart from the fact that the request was first made more than thirty days after the original award) none of these articles would seem to support the kind of reconsideration that has been requested.

2. [33]  Nevertheless, a court or Tribunal, including this international arbitral Tribunal, has an inherent power to take cognizance of credible evidence, timely placed before it, that its previous determinations were the product of false testimony, forged documents or other egregious “fraud on the Tribunal.” See United States on behalf of Lehigh Valley Ry. v. Germany, (Sabotage Claims), Mixed Claims Commission, United States and Germany, (p. 926) Opinions and Decisions from 1 October 1926 to 31 December 1932 (1933) at 967; id., Report of the American Commissioner (30 December 1933) at 7–8; id., Opinions and Decisions in the Sabotage Claims (15 June 1939 and 30 October 1939). Certainly if such corruption or fraud in the evidence would justify an international or a national court in voiding or refusing to enforce the award, this Tribunal also, so long as it still has jurisdiction over the dispute, can take necessary corrective action. See the Statute of the International Court of Justice, Art. 61 (permitting revision of an award upon the subsequent discovery of a new decisive fact); ICSID Convention Art. 51 (same); U.S. Arbitration Act, 9 U.S.C. Sect. 10 (permitting judicial annulment of an arbitral award “procured by corruption, fraud or undue means”).

3. [34]  The present Tribunal would not hesitate to reconsider and modify its earlier award were it shown by credible evidence that it had been the victim of fraud and that its determinations in the previous award were the product of false testimony. However, no such evidence has been adduced. As in many complex cases, this Tribunal has been required to weigh and resolve occasional inconsistencies in the evidence of both sides in this arbitration, and to come to its best determination of the relevant facts. Nevertheless, the Tribunal is satisfied that the material facts on which it based its previous award on jurisdiction and liability, as well as the present award on damages and costs, are sufficiently explained and proved by credible evidence

Antoine Biloune et al. and Ghana Investments Centre et al., Award on Damages and Costs (Ad Hoc UNCITRAL Proceedings 30 Jun 1990), reprinted in XIX YCA 11, 22–23 (1994).