47 - The Legal Nature of Arbitral Awards

Summary

Despite a decades-long movement that has succeeded in harmonizing key aspects of the legal framework governing the international arbitration system, the notion of ‘arbitral award’ remains surprisingly elusive. Several problems, which are both theoretically challenging and practically consequential, follow. First, it is not clear to what extent – if any – an international arbitration award draws its legal effectiveness from the legal order of the seat of arbitration. This issue becomes of prime importance when an award that has been set aside in the jurisdiction where it was rendered is subsequently presented for recognition and enforcement in the courts of another state.Second, we are not sure which decisions (aside from those that are clearly mere scheduling orders and those that are clearly merits decisions) constitute arbitral awards, a decision that has significant consequences for enforceability and other applicable arbitration rules.Third, can arbitral awards constitute international investments that attract the protection of investment treaties? Here as well, there are diverging viewpoints on key questions that go to the legal nature of arbitral awards.In seeking answers to these questions, this chapter explores the legal nature of arbitral awards with a view to attempting to identify their distinctive features.