Arbitral awards: how long is long enough?
There’s a story told of Abraham Lincoln who, during his days as a working lawyer, was riding in a stagecoach from one rural courthouse to another. His companions got to discussing human anatomy, and one of them asked Lincoln, a distinctly tall man himself, how long he thought a man’s legs should be. Long enough, Lincoln replied, to reach the ground.
In the same vein, there is no one prescriptive answer to the question of how long an arbitral award should be. Long enough, Lincoln may have suggested, to do its job. But not as long, surely, as most awards are today.
Even in relatively routine commercial cases, it has become very rare to encounter a final award on the merits that is briefer than 100 pages. Often, awards in such cases are very significantly longer than that. There is next to no objective data on this point – institutions don’t publish information on it, and the various surveys of practitioners and clients that are published from time to time don’t discuss it. But my experience of arbitration practice over the last twenty years has been that, over that time, awards have been getting increasingly lengthy, and that the trend shows no signs of abating.
Why are awards so long?
The easy part of the answer is that technology makes it possible. I began practising law in the late 1980s, before the widespread adoption of word processing software. Legal documents were tapped out on a typewriter, and if substantial amendments were required, the entire document usually needed to be re-typed. That constraint imposed the discipline of brevity, and even relatively complex contracts and pleadings were markedly shorter than their equivalents are today. Contemporary technology neither imposes nor encourages that restraint: on the contrary, it enables lengthy documents to be created with minimal thought, allowing for the wholesale dumping of boilerplate clauses or cut-and-pasted extracts.
So the means to create long documents are now freely available. But to what purpose? There are very few mandatory elements to an award: I am aware of no country whose law sets out an exhaustive list of what an award must contain. The UNCITRAL Model Law, for example, requires only that an award be in writing, signed by the arbitrators; that it state the reasons upon which it is based (unless the parties agree otherwise); and that it state the date on which, and place at which, it was made. Contemporary practice (propounded in such guidelines as the IBA’s Toolkit for Award Writing) has established, however, a template for an award that includes minute detail of the procedural history of the case; extensive lists of the parties’ representatives and arguments; and synopses of the evidence presented. Tribunals load up their awards with this wealth of detail in order, it appears, to demonstrate that the arbitration was procedurally sound, and that each party was afforded an opportunity to put its case. The motivation, in other words, is to protect the award against the risk of a challenge; as the IBA’s Toolkit for Award Writing puts it, all this “information may be relevant in later recognition and enforcement or set-aside or annulment proceedings.”
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