Duty to Render an Enforceable Award in International Arbitration: a Critical Analysis

Abstract

The authors critically analyse the arbitrators’ duty to render an enforceable award, which is often considered as a starting p oint for resolving a number of legal issues arising in the course of arbitration proceedings. The authors prove that this duty cannot replace other legal instruments and has no independent role in resolving issues of jurisdiction, applicable law or merits. This duty originates from the arbitration agreement and serves the private interests of disputing parties. Hence, it cannot be used to take account of the public interests of states or the international community. The mere fact that a future award will be enforced in a particular jurisdiction or can be set aside in this jurisdiction does not mean that this jurisdiction has a sufficient connection with the subject-matter of the dispute for arbitrators to apply its law or its overriding mandatory rules — and vice versa, the mere fact that a particular state is not the seat of arbitration or will not be a place of enforcement of the future award does not mean that its law cannot be applicable in the international arbitration proceedings. These issues are subject to more nuanced legal rules concerning choice of law and establishing the content of applicable law as well as the rules concerning the application of overriding mandatory rules of third states and transnational public policy. On top of that, the competence that the parties confer on arbitrators when concluding an arbitration agreement implies the arbitrators’ duty to independently determine their jurisdiction (the competence-competence principle) and resolve the dispute through their own legal analysis of applicable law and circumstances of the case. If arbitrators substitute this analysis with an attempt to predict how a particular state court (whose law is not applicable) will react to their decision at the enforcement stage, then their award may be subject to setting aside as rendered with negative excess of competence. For these reasons, this article demonstrates that the arbitrator’s duty to render an enforceable award, as a general rule, merely has a gap-filling role in procedural matters and, for example, can be used to justify arbitrator’s implied powers to take certain procedural actions that are not expressly stipulated in the parties’ agreement or applicable procedural rules. However, most references to this duty in practice are erroneous.