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Ancillary issues that may be material to the Tribunal's determination

Sunday, August 16, 2026 11:57 AM | Anonymous

What should arbitrators to do in writing the award, when over the course of arbitration, the parties submit evidence that raises, in the eyes of the Tribunal, issues that may be relevant and material to the outcome of the case but the parties have not asked the Tribunal to address them (e.g. evidence of possible fraud in underlying transaction)?

What are your thoughts?

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  • Sunday, August 16, 2026 2:22 PM | Jack Levin
    By addressing an issue not raised by a party, even though evidence exists on that issue, the Tribunal may be exceeding its authority. An even more obvious issue than fraud is statute of limitations. I don't see what interests are served when a Tribunal addresses an issue without being asked to do so.
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  • Sunday, August 16, 2026 8:01 PM | Gertrude Pfaffenbach
    I think the timing is important to the resolution. If the evidence came to light during the "discovery" part of the arbitration, and was relevant and material, and could affect the award, the arbitrator could ask for briefing on the issue for clarification. A question of why this issue was not to be considered would come to my mind. If there was underlying fraud, in the transaction, the contract, or an intent by one party to deceive, and if the arbitrator did not address the issue in the award, the arbitrator could come up to vacatur, should the aggrieved party later identify the underlying issue as affecting the award.
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