Although I have written around 700 judicial decisions, the thought of starting to compose one is always daunting. This is despite the fact that, by the end of the process, there is almost always a feeling of satisfaction.
It seems to me that writing a good judicial decision is partly science, partly art.
First the science.
An arbitral award has to contain certain formal content. Miss anything, and the award could be vulnerable to challenge or might not be enforceable (or both!). Even if the award survives challenge, reputational damage will have been done where the complaint is based on something missing.
There are some useful checklists to help to cover the necessary ground, eg the ICC Award Checklist. Even in non-ICC cases, the list can be adapted and gives a good indication of what you need to include. Another (more detailed) example is produced by the Finland Arbitration Institute.
Staying with the science, it is crucial to check the formal requirements at the law of the seat and in any institutional rules.
Now for the art.
In practice (as well as in judicial training I have provided on the subject), I find the following main points useful.
1. Be precise: check everything for accuracy: dates, exhibit numbers, witness name spellings, addresses. And don’t forget to check the obvious; sometimes we are so fixed on detail that we can make a glaring error.
2. Be concise: the more you write, the more scope there is for a mistake. Lord Neuberger’s judgement writing was superb. I usually refer to his decision in David T Morrison v ICL Plastics [2014] UKSC 48 where, in a novel case, altering the law on a very technical point of statutory interpretation, he explains the background facts, the issues and deals with eight arguments, all in under 5 pages (paras 39-57). More recently, the Victoria Supreme Court in Feldman and Feldman v Tayar [2021] VSCA 185 indicated that reasons in arbitral awards do not need to be of judicial standard, encouraging brevity.
3. Make it look nice: cosmetics are important: page numbers, paragraph numbers, even spacing, clear and regular headings and sub-headings, large enough font, consistent and clear source citations. All of this helps to contribute to an award that not only is good, but looks good.
4. Structure: this is, again, cosmetic, but it is also substantive: choose the wrong structure and you could end up confusing some of the facts or the law. Good structure gives an award flow, making it easier to read and navigate around.
5. Facts and law: the distinction between the two can be difficult to grasp, but factual conclusions cannot be revisited in the courts, even where award challenges on the merits are possible. This job is made more difficult by the difference between primary and inferential facts. Cross-referencing between facts and legal analysis can provide the award with a good, strong backbone.
I have mentioned challenge once or twice. Most awards are complied with and very few challenges succeed.
But a good award is about more than avoiding challenge. It is the last opportunity in the case to impress.
Creating an impression is everything in the reputation-fuelled field of arbitration.
Well-written awards can create a lasting good impression.