If the parties agree to a settlement of the dispute before the award is rendered, the arbitral tribunal shall terminate the arbitration or, at the request of the parties and the acceptance of the tribunal, determine the settlement in the form of an arbitral award on the agreed terms. The arbitral tribunal shall not be required to give reasons for such an award. [9.15] For an arbitral tribunal to achieve the standard of performance required for an internationally enforceable arbitral award, it must first ensure that it has jurisdiction to rule on all matters before it. The arbitral tribunal must also comply with all procedural rules for arbitration. These rules generally include, for example, the apportionment of the costs of arbitration,19 the indication of the seat of the arbitration, and the formal approval of the award by an arbitration institution (as in the case of an ICC arbitral award).20 The arbitral tribunal must also sign and date the award and ensure that it is served on the parties in the manner provided for by the relevant law or in the rules applicable to arbitration. If the arbitral tribunal has performed its work adequately, it should not be required to «correct» or «interpret» its award, even if this sometimes does occur.21 [9(16) In addition, article V(2)(b) of the New York Convention provides that, even if these conditions are met, an award need not be enforced if it violates public policy in the place of performance: [9.19] The power to make a partial arbitral award is a useful weapon in the arsenal of an arbitral tribunal. A partial arbitral award is an effective means of determining which issues can be decided in the course of the proceedings and which, once established, can save all parties involved a great deal of time and money.24 An obvious example that has already been cited is when it comes to a question of jurisdiction: a partial arbitral award on such a matter can be shortened, or at least considerably simplify the procedure. An arbitral tribunal that listened to a dispute for months to rule in its final award that it lacked jurisdiction would appear ineffective (to say the least) (unless the question of jurisdiction is inextricably linked to the merits of the case). [9.25] An example of a situation in which partial arbitration may be useful is when there is a dispute between the parties about the law(s) applicable to the case. If this is not resolved at an early stage, the parties must plead their respective arguments by referring to different legal systems.
They may even need to provide evidence from lawyers experienced in each of these different systems. In such circumstances, it may be useful for the arbitral tribunal to issue a preliminary decision on the question of applicable law. [9.11] A few years later, the Supreme Court of France presented a definition of an arbitral award that supported this interpretation. With regard to a challenge to an arbitral award on the basis of an alleged professional relationship between the president of the arbitral tribunal and the parent company of the guarantor of the debts owed by the defendant, the Court of Cassation stated that «only appropriate arbitral awards may be challenged by an action for annulment» and defined arbitral awards as follows: (3) If the court does so, it shall in its award deal with the matter or part of a claim that is the subject of the award. [9.12] The Decision of the Federal Court of Appeals for the Seventh Circuit in True North15 dealt with similar issues. True North, a U.S. advertising company, and Publicis Communications, a subsidiary of global communications group Publicis, entered into a joint venture in 1989, which eventually led the parties to arbitration in London. As part of one of its requests for a waiver in arbitration, True North asked Publicis to disclose tax records filed with the U.S. Internal Revenue Service and the Securities and Exchange Commission (SEC). In October 1998, the President of the Arbitral Tribunal «for and on behalf of the arbitrators» signed an unfounded «order» ordering Publicis to disclose the tax records requested from True North. Publicis did not comply and True North asked the court to uphold the arbitration decision. Publicis argued that the Court`s decision constituted only a procedural order and that only the final determination of «arbitral awards» required confirmation or enforcement.
The case was eventually brought before the Federal Court of Appeals for the Seventh Circuit, which disagreed, arguing that the finality of a decision was the key to its recognition or enforcement under the New York Convention. She described Publicis` approach as «extreme and untenable formalism» and noted: [9.23] Other modern arbitration laws contain similar provisions. Although the Model Law itself does not expressly refer to partial arbitral awards, it follows from the context in which the term «final arbitral award» is used and from the travaux préparatoires that the drafters of the notice intended the arbitral tribunal to have such a power.29 However, neither the arbitration agreement nor expressly or implicitly provides that an arbitral tribunal may make a partial arbitral award, the applicable arbitration rules or applicable law – it is doubtful whether the court has the power to do so.30 Its content generally indicates that a partial award is not the «last» award; Nevertheless, it should be clearly stated in the award that it is a partial award. As already mentioned31, the arbitral tribunal becomes a functus icio ex officio by making an arbitral award final, unless it concerns the correction of minor or fleeting errors. It is important not to give either party the opportunity to assert that the arbitral tribunal no longer has jurisdiction because it has made a final award, even if it intended to make only a partial arbitral award. During a divorce, the court is often asked to make a decision on how to divide matrimonial property between the parties. After taking into account the nature of the matrimonial property, including debts, and the total monetary value of the property, the judge will assign certain elements to each spouse. In some states of common property, the allocation of property to each spouse is as close as possible to half of the total. In other states, the division rule is «just,» meaning that the judge decides how much of the assets is fair to each spouse.
