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the Rules. The arbitral tribunal should invite the parties to agree on the
allocation of costs. These costs should include those fixed by the
Court.
The Role of the Arbitral Tribunal
The arbitral tribunal should assist the parties to properly transform
their settlement to a proper award. However, this scrutiny should be
done with great care and sensitivity, since it is not the arbitral tribunal’s
function to advise a party about the settlement. Sometimes, settlements
may include issues that go beyond the scope of the issues. Such a set-
tlement agreement may be recorded in the award by consent provided
all parties agree; however, the award must clarify that additional mat-
ters have been treated by the parties as falling within the overall dis-
pute
7
.
The arbitral tribunal should notify the parties in case the settlement
is incomplete, ambiguous, or conditional upon matters that may be
subject to future disagreements
8
. On the other hand, it should be
emphasized that the award by consent may not contain any decision by
the arbitral tribunal. The arbitral tribunal may not decide on the
remaining issues on which the parties did not reach an agreement, in
order to complete the award
9
.
Arbitral Tribunal’s Refusal to Issue an Award by Consent
Article 32 of the Rules does not oblige the arbitral tribunal to make
an award by consent. An arbitral tribunal is free to refuse to issue an
award by consent; however, it should be noted that this is rare in prac-
tice. It is important that the arbitral tribunal is satisfied that every party
has requested the award. Silence or apparent acquiescence would not
be sufficient
10
. Factors such as whether the settlement agreement is
contrary to mandatory law or public policy, or whether the award could
ARBITRATION LAW
193
7
Drafting Awards in ICC Arbitrations, p. 39.
8
Secretariat’s Guide, p. 326.
9
Secretariat’s Guide, p. 327.
10
Drafting Awards in ICC Arbitrations, p. 38.