To err is human, so the ICC Arbitration Rules provide for a special mechanism aiming to correct errors in arbitral awards. The correction of arbitral awards in ICC Arbitration is governed by Article 36 of the 2017 ICC Arbitration Rules, which reads:
“Article 36: Correction and Interpretation of the Award; Remission of Awards
1) On its own initiative, the arbitral tribunal may correct a clerical, computational or typographical error, or any errors of similar nature contained in an award, provided such correction is submitted for approval to the Court within 30 days of the date of such award.
2) Any application of a party for the correction of an error of the kind referred to in Article 36(1), or for the interpretation of an award, must be made to the Secretariat within 30 days of the receipt of the award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the arbitral tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. The arbitral tribunal shall submit its decision on the application in draft form to the Court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the Court may decide.
3) A decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. The provisions of Articles 32, 34 and 35 shall apply mutatis mutandis.
4) Where a court remits an award to the arbitral tribunal, the provisions of Articles 32, 34, 35 and this Article 36 shall apply mutatis mutandis to any addendum or award made pursuant to the terms of such remission. The Court may take any steps as may be necessary to enable the arbitral tribunal to comply with the terms of such remission and may fix an advance to cover any additional fees and expenses of the arbitral tribunal and any additional ICC administrative expenses.”
Such a provision was initially missing from the ICC Arbitration Rules. The main reason for this absence was based on the prevailing opinion that the ICC Court’s scrutiny of draft awards[1] was sufficient to spot any errors. As no system is flawless, however, it became necessary to add such provisions to the ICC Arbitration Rules.[2]
Types of Awards that Can be Corrected
In the absence of any further specification in Article 36, the rules regarding the correction of awards in ICC arbitration shall apply to all arbitral awards, including “interim, partial or final” awards.
Definition of Errors that Can be Corrected
Article 36(1) of the 2017 ICC Arbitration Rules specifies that the correction of awards may concern “a clerical, computational or typographical error, or any errors of similar nature contained in an award.” However, absent any national provision to the contrary, this provision should not be interpreted as allowing the arbitral tribunals to “render an additional award addressing issues that it failed to address in the original award.”[3] Only material errors listed above can be redressed. The Secretariat’s Guide specifies in this respect that an “arbitral tribunal cannot rectify flaws it discovers in its own reasoning or add references.”[4]
Procedure for the Correction of Arbitral Awards in ICC Arbitration
Correction on Arbitral Tribunals’ Own Initiative
Article 36(1) of the 2017 ICC Arbitration Rules provides that arbitral tribunals may proceed to the correction of any error contained in their initial awards “on [their] own initiative”, provided that “such correction is submitted for approval to the Court within 30 days of the date of such award.”
Application of Parties for Correction of Arbitral Awards in ICC Arbitration
The 2017 ICC Arbitration Rules give each Party the possibility to make an application for the correction of an error they spot in the award. Article 36(2) provides that such an application needs to be made “to the Secretariat within 30 days of the receipt of the award by such party, in a number of copies as stated in Article 3(1).” Then, the application is transferred by the Secretariat to the arbitral tribunal. After transmittal, the arbitral tribunal normally grants the other party a time limit to comment on the application. This time limit generally does not exceed “30 days, from the receipt of the application by that party.” Upon the receipt of such comments, the arbitral tribunal has 30 additional days to submit “its decision on the application in draft form to the Court.”
Such an application generates additional costs. Therefore, pursuant to Article 2(10) of Appendix III, the ICC Court “may fix an advance to cover additional fees and expenses of the arbitral tribunal and additional ICC administrative expenses and may make the transmission of such application to the arbitral tribunal subject to the prior cash payment in full to the ICC of such advance.”
Decisions on Correction of Arbitral Awards in ICC Arbitration
Regarding decisions on the correction of arbitral awards in ICC arbitration, three scenarios need to be distinguished.
First, should the arbitral tribunal decide to correct the errors contained in its initial award, such a decision shall, pursuant to Article 36(3) of the 2017 ICC Arbitration Rules, “take form of an addendum and shall constitute part of the award” that it modifies. This Article also specifies that such an addendum shall also be governed mutatis mutandis by other award-related rules, namely Article 32 (Making of the Award and, particularly, the obligation to state the reasons upon which the addendum is based), Article 34 (Scrutiny of the Award and, thus, the addendum by the ICC Court) and Article 35 (Notification, Deposit and Enforceability of the Award and, thus, the addendum).
Second, should the tribunal reject the application for correction of the award and no order on costs is issued, such a decision is simply called a “decision”. This “decision” is not considered as being part of the arbitral award. However, the ICC Court requires that this decision “meet the same requirements as addenda with respect to form. In particular, decisions are scrutinized in the same way as addenda and must indicate the reasons why the arbitral tribunal is rejecting the application for correction”.[5]
The last scenario concerns a situation when the application for correction of an award is rejected although an order on costs has been made. In practice, this sort of decision is referred to as a “decision and addendum”.[6] In this respect, the Secretariat’s Guide rightly points out that while “differentiating the decision from an addendum […] the name dispels any doubt over whether the decision regarding costs forms part of the award for the purpose of enforcement.”[7]
[1] See Article 34 of the 2017 ICC Arbitration Rules.
[2] Y. Derains, E. Schwartz, Guide to the ICC Rules of Arbitration, Kluwer (2005), 2nd ed., p. 322 and seq.
[3] G. Grierson, Arbitrating under the 2012 ICC Rules, Kluwer (2012), p. 216.
[4] J. Fry, S. Greenberg, F. Mazza, Secretariat’s Guide to ICC Arbitration, 2012, p. 348, para. 3-1262.
[5] J. Fry, S. Greenberg, F. Mazza, Secretariat’s Guide to ICC Arbitration, 2012, p. 354, para. 3-1292.
[6] J. Fry, S. Greenberg, F. Mazza, Secretariat’s Guide to ICC Arbitration, 2012, p. 354, para. 3-1293.
[7] J. Fry, S. Greenberg, F. Mazza, Secretariat’s Guide to ICC Arbitration, 2012, p. 354, para. 3-1293.
