В продолжении статьи рассматриваются вопросы, связанные с арбитражными издержками и ценой иска, вынесением арбитражного решения и выдачей его сторонам спора, публикацией решений арбитража, а также с порядком изменения и обжалования арбитражного решения.
The Award
The award will be reasoned; unless that is the parties agree otherwise which happens only very rarely. If the parties do however agree to dispense with reasons the tribunal will issue an award without reasons together with a document which does not form part of the award but which gives, on a confidential basis, an outline of the reasons for the tribunal’s decision. The effect of such an agreement is to exclude the Court’s jurisdiction under section 69 of the Arbitration Act 1996. However, it may be possible to rely upon such reasons in support of a challenge to an award under s.68 of the Arbitration Act 1996 on grounds of “serious irregularity”.
The award will set out the decision of the tribunal upon the substantive dispute, specifying the amount of any money sum found due by either party to the other and directing payment of that amount, together with such interest as the tribunal may see fit to award. It is customary to describe legal conclusions in the reasoning as ‘findings’ of law and factual conclusions as ‘holdings’ of fact. It will also set out the decision of the tribunal as to who shall, as between the two parties, bear and pay the cost of the award (including the tribunal’s disbursements) i.e. the costs of the tribunal itself and the parties’ own costs.
The tribunal has of course a discretion in relation to the question of costs, but costs will normally be awarded against the party who has substantially lost the case as required by the 1996 Act itself. However, in appropriate circumstances be apportioned in order to reflect, for example, degrees of failure or success, a pyrrhic victory or failure of the ‘winner’ to beat an offer by his opponent. The incidence and or quantum of costs may be reserved for later determination by further award e.g. where an interim award deals with preliminary issues which may or may not finally determine the dispute or if the parties wish to deal with offers without prejudice save as to costs.
Arbitrators have power to award simple or compound interest. LMAA arbitrators generally award interest on a compound basis, with three-monthly rests. The rates are related to the currency of the award which in turns depends on the identity of the currency which best reflects that in which the successful party actually incurred his loss. A successful party who obtains an award in US Dollars and who is based in, or substantially operates in the United States, may expect to be awarded interest at a rate related to the domestic US Prime Rate for the relevant period. In the more common case of a party trading in US Dollars, but based outside the United States, the rate is more likely to be related to the external US Dollar LIBOR 3-monthly rates. LMAA arbitrators maintain tables of these and of Sterling base lending rates for past years.
Interest will normally be awarded from the date when loss or damage was suffered by the successful party, or in the case of a balance of accounts from about 6 weeks after the conclusion of the relevant contract.
Fees of the Tribunal
Agreement upon a sole arbitrator has obvious economic attractions, particularly in the case of an arbitration on documents alone, or where the amount at stake is modest.
LMAA arbitrators charge an appointment fee upon their acceptance of an appointment (currently GBP200) and where there is an oral hearing there is provision for booking fee to be payable to the arbitrators calculated by reference to the number of days reserved for the hearing which is non-refundable in the event of settlement close to the hearing.
Otherwise the tribunal’s fees are essentially charged, and payable, on the issue of any award (whether interim or final) and geared to the amount of time devoted to the case and not, unlike say those of say ICC, calculated by reference to the amount claimed by one or both parties or even the amount awarded. The liability of the parties for the fees of the tribunal is joint and several though the award of course will deal with apportionment of the liability as between the parties to the reference. As the claimant will not be able to get the award until he discharges the tribunal’s fees as settled in the award he will have to outlay the money is in this connection quite irrespective of his knowledge of the result.
Release of the Award
The tribunal will notify the parties when the award is ready to be taken up (either by collection or dispatch), specifying the amount of the costs of the award. The award will not be released, and nor will of course the contents be disclosed or discussed, until the tribunal has received payment of that specified amount. The party effecting payment will receive the original of the award, and a copy will be sent to the other party. Provision is usually made in the award for immediate reimbursement, by the other party, of any sum so paid for which the party taking up the award has not been found liable.
Assessment of party and party costs
Although the court has power to assess the costs awarded to a party in an arbitration this power is rarely used it and it is much more normal to see the tribunal themselves assessing such costs. Parties usually simply produce their detailed time sheets and counsel fees notes and other disbursement invoices. Here lies another advantage of London arbitration, as compared to court proceedings, as it is much simpler and quicker to get an assessment of costs award from London tribunal than it is to go through the bothersome process of formal assessment (or taxation as was once known) in the High Court with all the demand of a formal bill prepared by a costs draftsman.
Publication of Arbitration Decisions
Awards are of course confidential to the parties and that confidence can only be released with the consent of both parties which is rarely invited let alone for that matter forthcoming. There are however some very limited, but nevertheless important, exceptions to the rule of confidence that enable a decision in one case to be used in another where the award is the foundation of the action in a case but as with civil cases more generally there is only an issue estoppel on the findings in an award as between the parties themselves; hence the importance of consolidation/joint hearings.
The LMAA has arrangements with Lloyd’s Maritime Law Newsletter for summaries of awards to be published by it, provided the parties agree. These summaries do not disclose the names of the parties.
How can an award be challenged or appealed against?
There may be a challenge to an award if a serious irregularity, as defined in s.68(2) of the Arbitration Act 1996 can be shown. Irregularity means more than just the result is wrong result but that something has gone wrong in the process of getting to the result whatever it may be more; e.g. by reason of use of a procedure unfair to one of the parties or otherwise, in extreme cases, a manifestation on the part of the tribunal of bias or impartiality. This is a position unlikely to be encountered with LMAA arbitrations. Attempts to dress up appeals on a point of law or fact as an irregularity are strongly discouraged by the courts.
An appeal on a question of law arising out of an award may be made under s.69 of the Arbitration Act 1996 but only if both parties consent which is of course unlikely. Otherwise the party wishing to appeal has first to obtain leave to appeal from the Commercial Court. That is not easy to get. There must, on the facts as found by the tribunal, be a mistake of law which is either “obviously wrong” or least, where the issue is of wider public importance, one “open to serious doubt”. The point of law must also have been one taken before the tribunal and be one which substantially affects the rights of the parties.
Автор: Paul Bugden, Bugden & Co, 10 Lloyd’s Avenue, London EC3N 3AJ
Источник: http://www.forwarderlaw.com/library/view.php?article_id=808