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Module 4 (3 of 3) - AWARD WRITING - What remedies (recours) can Parties…
Module 4 (3 of 3) - AWARD WRITING - What remedies (recours) can Parties seek from Arbitrators
It should
not be assumed that the only award Arbitrators can make is for money or an allowance
.
The Tribunal has the
same power as the court
. The
remedies
which are
available to Arbitrators
when making their Award are as follows:
An award for
payment of a sum of money
(most common)
As
damages
(for breach of contract)
Arbitrators have the
power to order the payment of a sum of money in a foreign currency
As a
debt
: e.g. a buyer shall pay the price of the goods delivered to him or shall pay a sum due under FCC Rules on default.
order for
Specific performance
: the Seller shall deliver the Buyer the goods he has contracted to sell.
It should only be ordered
when damages are not an adequate remedy
In commodity sales, it is difficult to imagine a situation where an award of damages would not be an adequate remedy
. Arbitrators will
unlikely make such an order
Any doubts about a party's ability to satisfy an award of damages
is not a reason why an award of damages many not be an adequate remedy.
!!! Arbitrators must assume that any sum which they order to be paid will be paid!!!
Section 48 of the Act
Declaration of rights
: Arbitrators have the right to declare what the rights of the parties are under a contract.
E.g. Parties have entered into a long-term instalment contract and
dispute has arisen over the interpretetion of one of the terms of the contract
, and the same dispute is likely to arise on each successive instalment.
A quick arbitration can determine the question
.
Remember that one of the reasons
why arbitration is preferred
to Court proceedings is the
flexibility
and the
speed of arbitration
.
Indemnity
: the claimant may be under a liability to pay a sum of money tho third party, but either the
payment is not due immediately
, or the
precise amount of the liability cannot be immediately ascertained
.Arbitrators may make a
declaration of the right to be indemnified
and/or
refrain (s'abstenir) from issuing its final award
until the amount payable can be fixed.
Rectification/Injunction
: Arbitrators in certain circumstances have the power
to award rectification of a contract
and also may have the power to make an
award in the form of an injuction
An injunction is a court order requiring a person to do or cease doing a specific action.
Either remedy would be
unusual
Interests:
Shall be payable
on all sums
wich become due, wether
by debt or damages
, from the
date on which sums become due ot the date of payment
, whether such payment is made before or after the commencement of arbitrations or proceedings for recovery of the same. If the parties failed to agree on the interest payable for the currency(ies) in whcih the debt(s) was/were incurred, then either of them may refer the dispute to arbitration.
the rate of interest is whithin the
Arbitrators' discretion
, but it ought normally be awarded at a commercial rate
A&A Rule 5.15
Costs
: often the only costs involved are:
Costs, fees and expenses
of the
Federation and of the Arbitrators
Costs
:
costs should follow the event
, it is a legal phrase that
means an order that recovery of costs be awarded to the party who is the winner of the issue, matter or case.
.
Arbitrators are
entitled to make different order as to cost
, but if they do they should
explain
their reasons in the award
Example
: Winning party has failed on a substantial issue in the case, the consideration of which prolonged the arbitration and increased the costs. In this case, it might be appropriate to order the winning party to pay part of the costs.
A&A Rule 5.13 & Section 61 and 63 of the Act
However, the
parties themselves my incur costs
, including
legal costs
Arbitrators have the
power to make an order for the costs incurred by one party to be paid by the other
Arbitrators should determine the amount of the winning party's
recoverable costs
.
Section 63 of the Act
unless they determine otherwise, in which case they should explain their reasoning
Arbitrators will award a
fixed sum
in respect to the
Federation's and their own fees and expenses
. It their
duty
to give carfeul consideration to the amount of these costs and to assess these costs at a
resonable figure
.
If the parties are unhappy
with the costs of the award, theay are entitled to
refer the matter to the Court
Section 64(2) of the Act