208 / 521
ing this order, the Court will bring the matter to an end by making its
decision on the costs of the arbitration
3
.
However, the parties may prefer an award by consent, which may
have advantages in terms of enforcement. Additionally, breach of an
award by consent may be subject to sanctions by the arbitral tribunal
and the Court
4
.
Procedural Issues on Awards by Consent
As for the timing of the settlement, it should be made after the file
has been transmitted to the arbitral tribunal. The reason behind this is
that any award should result from a genuine dispute.
As the award by consent is an award, it has to meet the form
requirements of any other ICC award. It should contain basic data such
as how the dispute arose, the arbitration agreement, the composition of
the tribunal, the general procedural history and the background to the
settlement, insofar as it is applicable and relevant
5
. The arbitral tribunal
should also comply with the particular requirements of the place of
arbitration, if any.
An award by consent would record the respective obligations of
the parties, such as the making of a payment, its currency and the inter-
est rate. As is known, pursuant to Article 32(2) of the Rules, all awards
are required to be reasoned. This requirement would apply differently
to awards by consent. The only reasons the arbitral tribunal should pro-
vide are the parties’ settlement and agreement on the issues within the
award by consent. It is not necessary that the arbitral tribunal provides
further reasons
6
.
Another issue concerning awards by consent is the allocation of
the costs of the arbitration. The award will finally record the parties’
agreement on the allocation of the costs, pursuant to Article 37(4) of
192
NEWSLETTER 2014
3
H. Lloyd, M. Darmon, J. P. Ancel, L. Dervaird, C. Liebscher, H. Verbist
,
Drafting Awards
in ICC Arbitrations
, ICC International Court of Arbitration Bulletin Vol.16/No.2 – Fall 2005, p.
38 (“Drafting Awards in ICC Arbitrations”).
4
Secretariat’s Guide, p. 324.
5
Drafting Awards in ICC Arbitrations, p. 38.
6
Secretariat’s Guide, p. 327.