CIArb AWARD WRITING TECHNIQUES: LANGUAGE USE IN ARBITRATION

​CIArb AWARD WRITING TECHNIQUES: LANGUAGE USE IN ARBITRATION

When an arbitration agreement did not specifically spelt out the language use in the arbitration, party may mount a challenge on this aspect:
 
Language Use in the Arbitration
 

1. Parties disagreed on:
   1. The language of the proceedings;
   2. Respondent proposed that this should be in […] given the location of the dispute.
   3. Claimant disagreed and asserted that this should be in […] based on the location of the manufacturing.
   4. Following the disagreement, parties looked to me to give some direction.
   5. After due consideration, I ruled that the language for the arbitration shall be English and that I would give my reasons for this in this award.
2. During [When], a substantive issue was raised by the parties with regards to the language use in this arbitration which required my decision, of which I had ruled that this would be English.
3. Foremost, the ‘choice of language’ use in this arbitration is not available in the arbitration agreement.
4. The Respondent proposed that the language use in this arbitration should be in […] given the location of the dispute while the Claimant disagreed and asserted that the language instead, should be in […] based on the location of the manufacturing.
5. Having to consider these submissions, I now, would give my brief reasons as the followings:
   1. The choice of language must not limit a party's opportunity to pursue its claim due to a language barrier based on the doctrine of natural justice for ‘equal treatment’[i] or equality.[ii]
   2. Although the language used by the parties business dealings can be relevant but it is not the sole criteria adopted by the various jurisdictions.[iii]
   3. Art.22(1)ML provides that “The parties are free to agree on the language or languages […]. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings […]”, giving a wide array of discretion to the arbitrator to decide on this matter.
      1. Since parties had agreed to the ‘Choice of Law’ COL governing the contract to be similar to the English law, that is neutral to the parties, I am inclined to find such ground of neutrality to be the main basis for the party to arrive at an ‘implicit agreement’ or facta concludentia, i.e. the use of the same language for the contract, the arbitration agreement and so forth.
6. For such reason and on balance, I FIND AND HOLD THAT, the language use in this arbitration shall be English.[iv]

 
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[i] Art.18ML, “The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”
[ii] <http://arbitrationblog.kluwerarbitration.com/2014/05/06/the-choice-of-the-language-of-the-proceedings-an-underestimated-aspect-of-the-arbitration/>
[iii] Some jurisdiction recognised that the language use in the arbitration shall also be the language use in the contract, i.e. Art.20 International Chamber of Commerce Arbitration Rules ICC, “in the absence of agreement by the parties, the arbitrators should give ‘due regard’ to all relevant circumstances, including the language of the contract" and Art.18 Rules of the International Centre for Dispute Resolution Arbitration Rules ICDR, "the language (s) of the arbitration shall be the language(s) of the documents containing the arbitration agreement, subject to the power of the arbitral tribunal to determine otherwise."
[iv] Art.19(1) UNCITRAL Rules 2010, “Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings.”