There are limitations on post-award remedies under the ICC Rules because one of the main reasons that private parties seek to have disputes resolved via international arbitration rather than national courts is the final and binding nature of arbitral awards.
Due to human beings’ fallibility, “all arbitral awards, like all national court judgments and academic treatises, will have mistakes, omissions, or ambiguities,” so post-award remedies can be necessary. Generally, international rules reduce the scale of these remedies by limiting both the reasons for requesting corrections and the time period after an award during which corrections can be made.
Article 35 of ICC Arbitration Rules allows the correction and interpretation of an arbitral award. Corrections can be made either upon the initiative of the Arbitral Tribunal which rendered the award or upon a party’s application. In order to prevent such remedies becoming a disguised appellate procedure, according to ICC Secretariat’s Guide, the scope of these remedies is restricted to clerical, computational and typographical mistakes.
Though such mistakes are usually insignificant, they can, at times, have a significant effect on the outcome of an arbitration. Procedurally, parties are not allowed to provide new evidence but only evidence that has already been filed. Furthermore, if the arbitral tribunal finds that the actual intention of parties is a disguised appeal of an award, it may order the party in fault to pay all relevant arbitration fees including the costs incurred by the other parties.
Also, time limits make a party’s appeal less practicable, since the application must be done within thirty days from receiving the award. Afterwards, even the Arbitral Tribunal has no right to rectify flaws in its own reasoning.
Concerning the interpretation of an award, the rules are almost the same, except that only parties can require interpretation concerning any part of an award that lacks sufficient clarity. Once again, with the intention of maintaining international arbitration’s non-appellate nature, article 35.2 implicitly imposes that an Arbitral Tribunal restrain itself from revising the outcome or reasoning of its award.
Of course, the annulment of the arbitral award can also be sought before the court of the seat of arbitration, although only in tightly-constrained circumstances.
Thanks to the ICC Court’s scrutiny procedure under Article 33, such applications are raised in only 10% to 15% of awards that are rendered, as compared to the total awards rendered per year.
– Yuhua Deng, Aceris Law