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Length of Award

Friday, February 28, 2025 2:40 PM | Anonymous

setting aside an Arbitration Award ...

What steps can an arbitrator take in writing an Award to avoid an excessively long Award? Are there components of awards that are unnecessary or can be presented more succinctly? On the other hand, do the reasons that arbitrators write long awards outweigh the benefits of arbitrators striving to write shorter awards? Should Awards not exceed 50 pages or have no page limit?

What are your thoughts? 

Comments

  • Saturday, March 01, 2025 9:15 AM | Denise Hammond
    Great question, and first of all, it depends on the case. This issue comes up mostly in reasoned awards. I remind the parties at the conclusion of the case that the award will identify the primary rationale(s) for the award, but will not touch on every legal argument or contested fact. I have never had a party or counsel object to that. I like to keep my awards succinct for clarity purposes. I often use lists, like "the primary factors that led me to this determination are:" I use tables to clarify damages, such as comparing repair estimates or production rates. Clarity should be our primary goal; the parties might not agree with the award but will understand it. Another primary consideration is the cost of a lengthy award. Remember the parties are paying a lot for the written award, especially if it's a panel. If the Arbitrator feels a 100 page award is necessary, the cost should be cleared with the parties ahead of time. They might choose a less expensive option
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    • Sunday, March 02, 2025 11:03 AM | David Robbins
      Since arbitration Awards have no precedential value, they should not be written as would a court decision. They should be issue-specific, setting forth the allegations and arbitrator(s) conclusion whether the burden of proof has been met for each allegation. The reasons for that opinion should be based on a concise and brief analysis of the evidence. While many cases turn on an analysis of contract terms, where legal principles are central to a determination of liability and/or damages, that law should be set forth, recognizing, however, that arbitration is a forum of equity (while arbitrators cannot manifestly disregard clearly applicable and presented law).
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    • Sunday, March 02, 2025 12:31 PM | Barry R. Ostrager
      Like judicial decisions, it should be the rare case that requires an opinion after trial that exceeds 35 pages. Significantly, Judicial opinions may have presidential importance. Arbitration decisions have no presidential value. So a recitation of the legal prevents that apply to the critical finds of fact, together with a recitation of the contentions of the parties ought to be able to be memorialized in 35 pages or less
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  • Saturday, March 01, 2025 9:21 AM | Michael Lampert
    Abe Lincoln is reputed to have said in response to a question that "a man's legs should be long enough to reach the ground". A lesson here for length of awards? Long enough to get the job done. Courts are willing to give short treatment to non-core points. So should arbitrators. Does anyone know of an award vacated for brevity? Prolixity?
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    • Saturday, March 01, 2025 10:22 AM | Igor Ellyn, Toronto, Canada
      I agree. The arbitrator should put in him/herself in mind of a judge hearing an application to set aside the award. Don't write any or more or any less than is required to thorooughly address the procedural history, jurisdiction, facts, issues, analysis, remedies and disposition in an a succinct and intelligible manner.
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  • Saturday, March 01, 2025 9:28 AM | Dusty Hecker
    I agree with the comments. No need for a detailed set of findings of facts or conclusions of law. Make clear you have read and considered everything, then describe the pertinent facts and if necessary law, cite the important contract provisions, and explain clearly the result and relief awarded. Personally, I think the parties deserve to know why they won or lost, so I’m not afraid to do that. But 100 pages? That’s crazy.
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    • Saturday, March 01, 2025 6:40 PM | Neil Kaplan CBE KC
      I refer you to the article written by Dr Zamir and myself in Arbitration International, Volume 40, Issue 2, June 2024, Pages 157–168, https://doi.org/10.1093/arbint/aiae009.

      In essence put the procedural history in an annex; precis the arguments so that the award is succinct. It is true that some institutions try to get you to be less than succinct. Resist when you are sure. each side needs to know why they won or lost and a supervising court needs to know the legal basis of the decision(s).
      Also I advise starting to write the award as you go along so that after the hearing it is only the result and reasoning that is left. Also costs are much easier to deal with if each side has to deliver a schedule of claimed costs before the result is known.
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  • Saturday, March 01, 2025 9:31 AM | Richard Mattiaccio
    The ICSID Ad Hoc Committee, in Gov’t of Guinea Case (ICSID Rev. 95, 105 (1990), provided a practical, working explanation of the reasoning requirement, an explanation that I think applies as well to commercial awards. The Committee explained that the award should enable a party to follow how the tribunal proceeded from Point A to Point B on points of fact and law. To do this, even in the most complex commercial cases, an award in excess of 50 pages is rarely necessary. Note that the award should enable a party, not third-party readers with no background in the case, to understand the logic of the decision. Arbitrators who go beyond 50 pages, in my experience, draft the award to persuade a stranger to the case of the wisdom of the decision, rather than to explain the decision to the parties. A persuasive brief is not necessary, and the parties should not have to pay for yet another level of written advocacy. Arbitrators should have enough self-confidence, based not on ego but on the very high bar for vacatur, to explain their analysis and conclusions simply rather than argue as if they were back in the role of counsel. Otherwise, the goal of efficiency and cost-effectiveness in arbitration are undermined.
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    • Saturday, March 01, 2025 10:57 AM | Steven Skulnik
      Not according to the ICC Court. 😏
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  • Saturday, March 01, 2025 9:43 AM | Stu Widman
    My partial response is in my published article "The Long Side Of Reasoned Awards: Dispelling The Myth Of Saying Too Much", which you can find on my website www.swidmanlaw.com, under the Publications header.
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    • Saturday, March 01, 2025 12:04 PM | James Elegante
      Mr. Swindman's article captures my thoughts completely. The parties have paid for my resolution as the arbitrator, they deserve to know that I have given their claims and defenses my thoughtful consideration, and that I have a solid basis for my decision.
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  • Saturday, March 01, 2025 9:54 AM | Thomas
    Depends on the complexity of the case in my view. The parties agree to arbitrate, not litigate, thus I see no reason, or advantage, in producing anything more than a summary description of the reason for the findings - summary. I believe findings should be more storytelling or poetry length, not war and peace.
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  • Saturday, March 01, 2025 10:12 AM | Michael A. Levy
    There is a built-in tension between wanting to provide a speedy and cost-efficient process and wanting to produce what you believe is a vacatur-proof award. The latter consideration begs the question, "Do I have enough to respond to all possible challenges to this award?" There's no easy answer, and the arbitrator has to use his/her best judgment on how to fulfill both needs.
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    • Saturday, March 01, 2025 11:05 AM | Denise Hammond
      While none of us want our awards challenged, I'm uncomfortable saying we should make it "vacatur-proof". If you make sufficient statement of your factual findings, the award is hard to challenge. Usually, except in the most difficult cases, summary statements of the law suffice, e.g., "A prior breach by claimant, excused the respondent's performance."
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  • Saturday, March 01, 2025 10:34 AM | George Lobman
    The award should be sufficient to carry the decision and if a reasons award is requested should be long enough to explain the facts, the reasons, and the decisions. After that no B award should be greater than 30 pages! This is Arbitration not law school. Many Arbitrators are able to express desires and reason within that 30 pages. With all due respect
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  • Saturday, March 01, 2025 10:37 AM | Nasri H Barakat
    Reasoned awards are typically more lengthly by nature. However, most of the times the parties prefer an award with reasons which means that the Panel should include its reasons for the award without the need for a detailed legal analysis. In either cases the award should be clear and address the issues raised and the relief requested regardless of its length! The award should inevitably be limited in scope and size to what the parties contracted for and the issues arbitrated.
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  • Saturday, March 01, 2025 10:46 AM | Peter Rundle
    Great comments by all. Each case is unique: some require a lengthy award to identify and address all issues presented (or risk vacatur). Where there are many claims and affirmative defenses across multiple pleadings, the award's length may be dictated by counsels' efforts and submissions. On the other hand, even in a 10-figure, 1-claim breach of contract dispute, a relatively brief award (20 pages or less) might suffice. Bottom line - one size does not fit all.
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  • Saturday, March 01, 2025 10:55 AM | Steven Skulnik
    The award needs to address all issues presented to the tribunal. In a recent case, a $55 million award was set aside because the arbitrators failed to deal with all issues presented to them. The court noted that the tribunal completely overlooked the respondent's counterfactual scenario in which the claimant would have suffered no losses. The Republic of Kazakhstan v. World Wide Minerals Ltd. [2025] EWHC 452 (Comm).
    If the tribunal was aiming for brevity, it was misguided.
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  • Saturday, March 01, 2025 11:38 AM | Michael Orfield
    First, state your Award up front.

    "Award: The Arbitrator finds in favor of the Respondent. Fees shall be borne equally between the two parties.

    Analysis:..."

    In this way the parties are not hunting for the decision. They have it immediately and then they can read the explanation. I believe a good outline of your Analysis is the first thing to write for yourself. Once satisfied it is both thorough and succinct, write it in full.
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    • Saturday, March 01, 2025 11:57 AM | Michael A. Levy
      Point well taken. Nothing worse than having to read pages upon pages searching for the outcome.
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      • Saturday, March 01, 2025 3:14 PM | Peter Rundle
        On lengthy awards, a table of contents is useful.
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  • Saturday, March 01, 2025 12:47 PM | Ted Gropman
    The length of the award is dictated by the number of issues presented for resolution. My awards have been as short as 10 pages with longest being 96 pages. In the latter case, there 56 separate claims being presented; each one of which needed discussion, analysis and resolution.
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    • Saturday, March 01, 2025 2:09 PM | Bryan F. Hickey
      Great question and wonderful comments, thank you and Irish blessing wishes to all. Brevity may have a greater role in the resolution of disputes than it is currently playing.
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  • Saturday, March 01, 2025 2:28 PM | Wm. Frank Carroll
    I once asked an acquaintance who is a federal district judge and well known for writing lengthy opinions even on a motion to dismiss, why he wrote such lengthy opinions. His answer was that he wrote such opinions for the losing party, not the winning party. His rationale was that he wanted the party who lost to know that all of their arguments were considered and evaluated before the adverse decision was rendered.

    I wholeheartedly agree with that rationale, particularly in the arbitration context. If parties, and even counsel, are to respect the arbitration process they need to know why the arbitrator reached the decision. I think reasoned awards lend credibility to the arbitration process.

    I always discuss the 3 types of awards with the parties at the Preliminary Hearing and advise them that I will be issuing a reasoned award similar to a federal district court opinion unless they request a standard plaintiff-defendant wins and how much. I discourage a request for a findings of fact/conclusions of law award because of the expense.

    Even in consumer cases with fixed fees I still issue a reasoned award. It certainly does not increase my compensation, but I think it explains to the consumer why he lost and thereby creates understanding and respect for the arbitration process.

    I do agree that some writers are enthralled by the sound of their own words, but this seems a rare problem. Even in cases where testimony consumed four weeks I have found it necessary only once to exceed 50 pages in the award.

    I think the" short award is best" approach is a vestige of the old, and in my view unfounded, fear that the more you say the more likely the award can be set aside. As anyone familiar with the courts' current approach to arbitration knows, especially under the FAA, the likelihood of an award being set aside is miniscule except for a failure to disclose.
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  • Saturday, March 01, 2025 2:56 PM | Anonymous
    The award sets forth names of the parties and their representatives, the issues, the positions of the parties on the issues, a summary of the testimony and evidence on the issues, and the arbitrator’s decisions on each of the issues. This should not exceed a total for the award of more than 20-25 pages.
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  • Saturday, March 01, 2025 3:25 PM | William Tucker
    I can't imagine any reason for any Award to exceed 50 pages. Having said that, awards that identify and discuss all the issues show the parties and their attorneys that the arbitrator paid attention to all the evidence and did a good job issuing the award.
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  • Saturday, March 01, 2025 4:21 PM | Gary D Quesada
    I think there are different considerations for a final award and an interim award. The final reasoned award should be succinct. However, I just learned a lesson in a recent large, complex multi-party case, which extended over a year in duration. The parties had significant discovery disputes from the start, which I had to resolve. I originally gave short written decisions with a cursory explanation. That came back to cause additional costs, because the parties continued to have discovery disputes which were at times duplicative. I think had I been more articulate, not less, and provided clear guidance, many of the later discovery issues would have been avoided.
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  • Saturday, March 01, 2025 4:27 PM | Judge Richard B Klein (ret.)
    Of course, the answer is "it depends." Unlike appellate court opinions (which I still think should be short), our reasoned opinions are only for the parties. We need not make lengthy brief-like arguments to defend our position. The idea is just to explain to the parties why I (we) came out as we did. I'd support a 50 page limit. Probably also a 20 page limit.
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  • Saturday, March 01, 2025 4:51 PM | Rob Harris
    Certainly, a concise reasoned award can survive a vacatur proceeding. However, by providing additional context and reasoning, the arbitrator may save the parties substantial expense by convincing the losing party that seeking vacatur would be pointless.
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  • Saturday, March 01, 2025 4:55 PM | Eric M Epstein
    I don't think you can limit an award. Each case is different. Some cases are extremely complex with nuerous parties, claims and counterclaims. Also, in employment cases, as well as other cases, a reasoned award is required, which may not be doable in 50 pages or less.
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  • Saturday, March 01, 2025 5:45 PM | Mark Kantor
    This is what SDNY Judge Loretta Preska had to say in an October 2024 decision upholding an ICDR award. She found the length of the award and detailed reasoning helpful in rejecting vacatur arguments.

    =====

    Regarding Petitioner’s second argument that the Panel improperly found the Court’s FOF/COL binding, the Court easily finds that the Panel provided at least a “barely colorable justification” for its holding that the Court’s FOF/COL was binding on and necessary in the arbitration. T.Co Metals, LLC, 592 F.3d at 339 (emphasis omitted) (citation omitted). Accordingly, there exists no reason to vacate the Award on this basis.

    To begin its analysis, the Panel discussed Petitioner’s arguments, Respondents’ arguments, and the applicable law in sections of twelve, nine, and nine pages, respectively. (See Award at 63-93.) Then, over the course of seven pages, the Panel laid out its careful consideration of the collateral estoppel and res judicata effects of this Court’s FOF/COL. (See Award at 93-100.) While greater page length does not necessarily equate to a valid or error-free decision, it does provide much more than a “barely colorable” justification for the Panel’s award. See Olin Holdings Ltd. v. Libya, 2022 WL 864507, at *6 (S.D.N.Y. Mar. 23, 2022), aff’d, Olin Holdings Ltd. v. State of Libya, 73 F.4th 92, 108-09 (2d Cir. 2023) (finding justification where an arbitral tribunal provided pages of reasoned analysis interpreting the language and legal implications of an arbitration agreement); Willemijn Houdstermaatschappij, BV, 103 F.3d at 12-13 (finding justification where a single plausible argument existed for the arbitration tribunal’s award even when they provided no explanation); CesFin Ventures LLC v. Al Ghaith Holding Co. PJSC, 852 F. App'x 572, 574 (2d Cir. 2021) (finding justification where the arbitration tribunal directly engaged with and made determinations about the parties’ legal arguments). Specifically, the Panel followed Court of Appeals precedent, analyzed each necessary element for collateral estoppel, and relied on a detailed chart listing out identical claims between the District Court proceedings and Phase 3 Part 1 of the arbitration. (See Award at 94-100.) Consequently, the Panel’s thorough discussion of the parties’ arguments and relevant legal standards for collateral estoppel and res judicata provided a justification sufficient to survive vacatur under § 10(a)(3).

    ****

    To support his contention that the Panel manifestly disregarded a necessary element of collateral estoppel, Petitioner myopically focuses on the Panel’s conclusion paragraph, ignores the preceding ten paragraphs of explanation, and declares that the Panel’s findings were “a conclusory statement . . . devoid of any meaningful analysis.” (See Pet. 1st Br. at 25.) To the contrary, the Panel relied on federal District, Circuit, and Supreme Court precedent and engaged specifically with each element of collateral estoppel, revealing the opposite of a manifest disregard of the law.7 (See Award at 94-95); see also Jock, 646 F.3d at 121-122 (holding that vacatur under either § 10(a)(4) or manifest disregard is not permitted where the arbitrators incorrectly decided the issue or even committed legal error). Indeed, the Panel recited both the relevant law on collateral estoppel and the issues of substantive law that collateral estoppel would preclude the Panel from determining again. (See Award at 84-93). It then applied these principles to conclude that this Court's decision on veil-piercing—which required the parties to arbitrate—was binding on the Panel. (See id. at 96.) In particular, the Panel noted that the Court’s FOF/COL was binding because the factual and legal findings therein were necessary to support the Court’s ultimate determination on arbitrability. (See id. at 96.) The Panel’s analysis evinces both an understanding and appreciation of collateral estoppel and a proper application of the legal principle. Consequently, vacatur is not warranted under the manifest disregard doctrine. See Seneca Nation of Indians, 988 F.3d at 626.


    7 In its “Applicable Law” section, the Panel cites fifty-nine different precedents over the course of nine pages, and then, in its analysis, repeatedly refers back to those precedents, explaining how its decision follows the relevant cases. (See Award at 84-114.)
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  • Saturday, March 01, 2025 6:47 PM | Stanley Chinitz
    (1) The award must be long enough to contain the elements referenced in this post, to be convincing and to withstand attack. (2) When a reasoned award is called for the award must accurately set forth the record facts on which the award is based, discuss the allegations, address the caselaw cited and explain the basis of the award. If appropriate, the contract terms must be addressed, including whether and how cited terms are applicable. Acknowledging the high standard applicable to attacking an award, I shape the award to make it as unlikely as possible that an attack on an award will be successful.
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  • Saturday, March 01, 2025 8:00 PM | Robbie MacPherson
    The Arbitrator is writing for the parties benefit. They need to know the material facts upon which the award is based, any material legal findings underlying the award and a detailed calculation of damages. Much more than that should not be necessary. An Award written for the purpose of forestalling an action to vacate should be reconsidered. The grounds to vacate under the FAA and most State arbitration acts are very narrow. If you think your award could subject to an action to vacate you need to spend more time thinking about the award, not how to justify what may be an ill advised award.
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  • Sunday, March 02, 2025 7:38 AM | Jim Daniels London based arbitrator Mining, Oil & Gas.
    I have never had an arbitration with less than 40 million ($) at stake and often they are in excess of 1/2 billion; with that amount of money at stake it is incumbent on the arbitrator to give good reasons and to fully cite the evidence which was persuasive or otherwise. Generally my awards are rarely less than 200 pages and often exceed 500 pages. However I have never - NEVER - issued an award later than six weeks from the end of hearings/submissions and am proud of the fact that a 100 page award concerning petrochemicals in China was available 9 (Nine) days after 23 days of hearings.
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    • Sunday, March 02, 2025 7:06 PM | Judge Gerald Harris (ret)
      The number of pages should never be used to judge the quality of an award. The test any arbitrator should use is “ have I said enough to make clear the basis for my decision “. Words should be used sparingly and effectively so as not to evoke the line spoken in Hamlet, “The lady doth protest too much…”
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  • Sunday, March 02, 2025 11:14 PM | Anonymous
    The length of my award depends on the issues for determination i.e. their number, complexity and whether they are related.
    That said, I write mainly for the benefit of the judge (the parties always know about the case more than me!), who, like me, will be encountering the case for the first time. The judge considers my award in my absence and without any other input from me.
    Finally, the finality of arbitration means that no one else will ever consider the facts and the evidence. Therefore, I must I capture in the award everything that is important. Of course, the least useful part in the oral hearing.
    Having read one of the comments above, I will start providing an executive summary of one paragraph.
    Greetings from Nairobi, Kenya.
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  • Monday, March 03, 2025 9:33 AM | Leslie Langbein
    My awards tend to be longer but there are at least three reasons for this. The first reason is that parties tend to bring theories of recovery (especially in employment or commercial cases) that are weaker, with the strategy that if they lose on a main claim, the arbitrator may fall back on the others. The addition of weak claims increases the need of the arbitrator to address them in the award. (On the other hand, an alternative is to address the strongest claim in the award and aggregate rulings on the weaker claims to a single sentence like "All other claims brought by the parties that are not addressed in this award are denied."). Second, the nature of certain types of cases also increases their length. For example, it is typical of a labor arbitration award to include sections that set out all the pertinent contract or policy provisions, an explanation of the parties' positions, the factual backdrop to the dispute, an analysis of the evidence and the "law", and the actual award with a discussion of remedies. Finally, when I hear a case that has broader implications to the parties (i.e. it is a claim that is capable of repetition) and particularly if the award will be a public record), I do not scrimp on my analysis. I want the parties to understand why I ruled the way I did. If, for example, it is due to unclear contract language, make them understand why the language may need to be re-negotiated during the next round of bargaining. Another example is when a union brings a discrimination claim and the union rep who drafted the demand for arbitration has no idea of what is involved in proving discrimination. I try to explain the law of discrimination. On the other hand, longer awards make for larger fees and to the extent that can be avoided, it should. But arbitrators got to do what arbitrators are hired to do ! I do not think the length of awards should be limited by AAA.
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  • Monday, March 03, 2025 12:03 PM | Robert A Shipley
    The detail and length of the Award shoudl be commensurate with the complexity of the case. The Award should provide the parties with clear reference to the record and applicable law to support the basis of the decision.
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  • Monday, March 03, 2025 12:50 PM | Kyle-Beth Hilfer
    Page limits are too arbitrary. The length of an award depends on the complexity of the case as well as the way the parties have conducted the arbitration. If the parties request a reasoned award, I explain to them that I will address all claims, whether weak or strong with the same level of reasoning. If the parties make excessive motions or have been contentious throughout the proceeding, even hinting at a possible future motion for vacatur, a prudent arbitrator will provide more reasoning. Of course, the arbitrator should strive for brevity, but only proportional to the case at hand.
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  • Monday, March 03, 2025 1:57 PM | ANONYMOUS
    I went back and looked at all my reasoned awards since 1999, and found that except for one 16 page award in a particularly complicated case, none were longer than 7 pages. When I write an award, first I outline it, then I type it out. A reread it at least 5 times to rephrase sentences and reorganize paragraphs. Sometimes I delete parts of an award and add other parts. The key is to keep it reasoned and right to the point. There should be no limit on the number of pages, but AAA should read and consider why any particular award is over 15 pages.
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  • Tuesday, March 04, 2025 10:12 AM | Anonymous
    Less is more. Always have to consider challenge.
    The expense to the parties to do an extensive Award is a consideration for all.
    Asking parties to draft the Award seems a bit of an abdication of the Arbitrators’ job. Not sure it saves any money for the parties.
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