The Award The Form and Contents of the Award to difficulties at the enforcement stage, since their existence cannot be established in writing within the meaning of NCPC, Art.l499l78a and Art.IV of the New York Convention.179 Contrary to Art.33(2) of the Concordat, which mandatorily requires a signature and, thus, the written form,180 PILS, Art. 189(2) provides for a written award only if the parties have not agreed otherwise (see PILS, Art.l89(l)), but the question is controversial.'81 Two commentators consider that waiving the written form is tantamount to waiving the right to challenge the award, so that it is subject to the conditions set out in PILS, Art.192.182 We do not share this opinion since a challenge against an oral award is not intrinsically excluded to the extent that its contents can be established: first, as stated above, the parties can agree that the arbitrator shall render his award orally and subsequently give reasons in writing; secondly, OJ, Art.93(2) provided that an authority whose decision was challenged could give reasons supporting it in its answer to the challenge, and the same result follows from an application by analogy of Art. 112(2) of the new Swiss Federal Tribunal Act, which is in force as from January 1, 2007. This provision provides that if a decision challengeable before the Swiss Supreme Court is not motivated, either party can request, within 30 days following from the notification of such decision, the reasons supporting it. Finally, PILS, Art. 190(2) does not provide for any ground for setting aside the award in respect of the form of the award. Thus, the Federal Tribunal held that the absence of signature of the chairman, required by PILS, Art. 189(2), was not as such a ground for setting aside the award but could at most be a sign that the chairman did not participate in the deliberations, what would lead to the annulment of the award in application of PILS, Art.l90(2)(a).183 In practice, it is at least conceivable that the parties agree that the arbitral tribunal shall give its award orally and confirm the result in writing, giving reasons in a subsequent document or. in the event of a challenge, in the form provided for in the proceedings before the court. Under such conditions, dispensation from the written form or from the duty to provide reasons could expedite the resolution of the dispute. However, the parties should only waive a written, reasoned award in particularly urgent situations, and we do not advise such a practice. I7S-' Devolve, Rouche and Pointon, p. 170 para.306, go a step further and infer from this provision the requirement of the written form. I7" Fouchard, Gaillard and Goldman, para.1389. INn Lalive, Poudret and Reymond, p. 189 para.3 ad Art.33 of the Concordat. On the relationship between parags 1 and 2, see Dutoit, p.661 para.l ad Art. 189; Lalive, Poudret and Reymond, p.410 para.3 and p.414 para. 12 ad PILS, Art. 189; contra, Ritede and Hadenfeldt, p.298 §411, who consider that the reservation of an agreement of the parties in para.l does not apply to the second sentence of para.2. and that the written form, the reasons, the date and the signature are therefore mandatory. '*2 IPRG-Heini, p.2060 paras 19 and 20. and KSP-Wirth, p.1660 para.25 ad Art. 189, the latter only referring to the former's opinion without commenting on it. ASA Bui. 2006, p.105, c.3.1 and 3.2. 8.3.2 The essential elements of the award Several laws briefly enumerate the essential elements which the award must 745 contain.184 These generally include the names of the parties and the arbitrators, the seat of the arbitration and/or the place where the award was made, the subject matter of the dispute, the arbitrators' decision and their reasons, the date and signature(s). We shall return to these points in 8.3.3 and 8.3.5. This list does not imply that the omission of one of these elements necessarily leads to the setting aside of the award.185 Thus the Italian Corte di Cassazione held that it is not indispensable that the holdings (or operative part, dispositif) be separated from the reasons, provided that the former can be identified with certainty from the award.186 The same court held that the indication of the seat of the arbitration, which was a condition of validity of the award under, ICCP 1994, Art.823(2) No.5—today ICCP 2006, Art.823(2) No.2—could result from an interpretation of the award.1 S6a The contents of the award may also be prescribed by the parties' agreement or rather by the arbitration rules to which they submit.187 While some rules are very detailed,188 others are lacking in this regard.189 In Switzerland, while Art.33 of the Concordat contains a particularly detailed list of the elements which an award must contain, the absence of which constitutes a ground for setting aside under Art.36(h), PILS, Art. 189 opted for a more liberal solution by referring to the parties' agreement (the disregard of which is not a ground for setting aside the award under Art. 190(2)). The parties' agreement applies not only to the form of the award, but also to its contents, in particular to the reasons, as we shall see in 8.3.3 below. This does obviously not dispense the arbitrators from providing the elements necessary to make their award comprehensive and enforceable,100 failing which the Federal Tribunal could apply OJ, Art93(2) by analogy or Art. 112(2) of the new Federal Tribunal Act as from January 1, 2007 in order to obtain clarification from the arbitral 184 CJB, Art. 1701 (5); NCPC, Art. 1472, only applicable to international arbitration in the event of submission to French law pursuant to NCPC, Art. 1495 (Fouchard, Gaillard and Goldman, para. 1 406); ICCP, Art.823(2); WBR, 1057(4); Art.33 of the Concordat (idem). i5 For France, Fouchard, Gaillard and Goldman, para.1406, while de BoisstJson (p.803 para.782) reserves the ground for setting aside of NCPC, Art.1502 No.3 for non-respect of the arbitrator's mission; for Switzerland, see the decision cited in n.183. ,se Riv. dell'arb. 1998, p.245, with a note by Grossi; Ruede and Hadenfeldt, p.303 § 41, IV, propose the same solution for Swiss law. 186aRiv. dell'arb. 2004, p.697. 187Redfern and Hunter, pp.379-380 para.S-54. 188 Notably ICSID, Art.47. 189 Thus Art.32 of the UNCITRAL Rules, Arts 32.3 and 32.4 of the Swiss Rules, and ArC.25 of the ICC Rules, which only require that the award give reasons; on the usual contents of ICC awards see Craig, Park and Paulsson, pp.365-366 § 19.04, and H. Lloyd, M. Darmon, J.-P Ancel and Lord Devaird. Ch. Liebscher and H. Verbist, Drafting Awards in ICC Arbitration, ICC Bui. 2005 (vol 16/2), pp.19-40. 190 See Lalive, Poudret and Reymond, p.410 para.4 ad PILS, Art. 189, reserving procedural public policy pursuant to Art,190(2)(e) rather than the right to be heard pursuant to Art.l90(2)(d): KSP-Wirth, p.1660 para.26, giving a detailed list of elements which are usual and useful, but not all essential. The Award tribunal. Setting aside an award for this reason would only be justified as a final resort. Section 52 of the Arbitration Act 1996 also refers principally to the agreement of the parties, which can for instance consist in a reference to s.26 of the LCIA Rules, and provides that to the extent that there is no such agreement, the award shall be made in writing signed by all the arbitrators, shall contain reasons, and shall state the seat of the arbitration and the date when it was made. Nevertheless, as Merkin has observed,191 an effective award should also satisfy other requirements, notably resolve all the questions submitted to the arbitrators, not make any findings ultra petita, and contain an unconditional holding (operative part) which can be enforced. Sections 48 and 49 contain indications on the remedies which may be exercised by arbitrators (always provided the parties have not agreed to the contrary) and which must be respected in the holding made in the award. In particular, s.49 authorises an arbitral tribunal to award simple or compound interest on amounts due before the date of the award, and simple or compound interest on the amount due after such date up to the date of payment (post award interest),""11 which is not provided for under common law.192 A decision of the High Court clarifies that if a party intends obtaining such post award interest, it must apply explicitly for them to the arbitral tribunal, and if the latter does not award them, the court cannot do so instead.193 The power of the arbitral tribunal to grant pre-award interest pursuant to s.49 was, together with the applicable currency, one of the issues before the courts in the case Lesotho Highlands Development Authority v Impregilo SpA. More specifically, the question was whether such a power was excluded or modified by the terms of the main contract or by operation of the Lesotho law, as the substantive law of the contract. Contrary to the High Court and to the Court of Appeal, the House of Lords upheld die award on interest and found that the arbitral tribunal had power under s.49(3) to award interest. It considered that there was nothing in the main contract to the contrary and that the party challenging the award had not satisfied its burden to show that the law of Lesotho prevented such award on interest in the framework of the "exceptional remedy under s.68".193a This case illustrates the inconveniences that may result from the three levels of judicial challenges offered by English law against arbitral awards. 8.3.3 Reasons for the award 746 While common law arbitrators traditionally abstained from giving reasons, this was above all in order to avoid exposing their awards to appeals on a point of iyi Merkin, p. 139 ad s.52: see also Mustill and Boyd, pp.382-388 Ch.26. On the issue of award on interest, see generally the Chartered Institute of Arbitrators' Guideline on Awards of Interest, Arbitration 70 (2004), vol. 3, pp.201-210; D. Altaras. The Arbitrators' Power to Award Interest, Arbitration (70) 2004, vol. 2, pp.108-114. 192 Merkin, pp.133-136 ad s.49; Mustill and Boyd (2001), p.5 para.14 and pp.331-333 ad s.49, who point out that this is an advantage of arbitration for creditors. 193 Walker v Rowe L2000] 1 Lloyd's Rep. 116, QB. I* nnns'i riK"ffl A'X nnn^l 9 T lnvri'