Types of Arbitral Awards (Term Paper Sample)

Introduction
An arbitral award is a decision made by an arbitrator in an arbitration proceeding. An arbitrator is a person chosen by the parties to a dispute to hear and decide their case. Arbitration proceedings are either one-way or two-way proceedings. One-way proceedings can be private or public. Two-way proceedings generally consist of a claimant who initiates the action against another party he accuses of breaching an obligation under the law, known as the respondent. The agreement that governs the arbitration is called an arbitration clause. Such clauses often provide that the arbitrator has the power to make decisions on all issues arising out of a contract. The Kenyan courts have held that an arbitral award is a contract between the parties to the arbitration agreement and, therefore, can be enforced as a contract. An arbitral award can also be enforced as a judgment if a court makes it with jurisdiction over the subject matter and parties. Arbitral awards aim to offer effective remedies quickly at a low cost. Arbitral awards are important because they allow people to have their disagreements settled amicably without resorting to violence or going through expensive court trials. They are legally binding and enforceable as if they were the judgments of a court. In Kenya, there are five main types of arbitral awards: interim/partial awards, final arbitral awards, provisional awards, additional awards, and consent/agreed awards. The paper discusses the different types of arbitral awards.[Kubo, Emmanuel Mwagawe, and Alvin Gachie. "International Public Policy in The Context of International Arbitration in Kenya." ALTERNATIVE DISPUTE RESOLUTION: 91.] [Kimani, Edwin, and Peter M Muriithi. "A Critique Of The Law Governing Capacity Of Parties To Enter Into An Arbitration Agreement." Alternative Dispute Resolution Journal 9, no. 1 (2021).] [Gatobu, Solomon. "International Commercial Arbitration in Kenya: Opportunities and Challenges." ALTERNATIVE DISPUTE RESOLUTION: 182.]
Discussion
Interim or partial arbitral awards
Interim or partial arbitral awards refer to arbitration awards that are not final and cannot be enforced in courts of law. Interim Awards were introduced into Kenyan Commercial Law under Section 21A(2) in 1977 following the enactment of the Arbitration Act. The confirmation of an interim award can happen in two ways: either by the same tribunal which made the original order or by a new tribunal that decides to confirm the order - in both cases, their decision must be unanimous. The time limits imposed by interim awards are usually much shorter than those imposed by final awards. Typically, the parties agree to an interim award when a party seeks urgent temporary relief, and there is insufficient time to await a full hearing. In Kenya, interim awards can only be executed under court orders.[Kanyi, Brian Gachii. "Dissenting opinions in arbitral awards in Kenya: potential benefits and challenges." PhD diss., Strathmore University, 2017.] [Jeptoo, Saina Arriella. "A Critical Analysis Of Arbitral Interim Measures Of Protection In Kenya." PhD diss., University of Nairobi, 2019.]
For interim awards to be recognised and enforceable in another country, several additional requirements must be met. First, a request for interim enforcement will only be accepted by a country's courts if it is certified by the originating court. This means that the certificate has to contain three things: a copy of the judgment; a statement as to whether this judgment is being sought for recognition or enforcement; contact information about the originating court. Secondly, according to common law principles, an interim award must have been issued by an independent and impartial arbitrator acting as such at the time. Lastly, the applicant's claim must be substantially identical to the claim in the interim award. For interim awards, there are two basic grounds under which they can be made: urgent necessity and balance of convenience. Urgency occurs when a dispute has not yet been determined, but there is an imminent risk that it will be irreparably harmed should nothing be done to stop it in its tracks. Balance of convenience means that jurisdiction should decide where an interim award should be executed based on considerations including equality of arms and procedural economy. In Kenya, interim awards are usually granted in favour of defendants because most cases involve business-related matters. They grant partial relief to the claimant until the final decision determines who wins the case.[Kibia, Doreen W. "Arbitrability of Intellectual Property Disputes in Kenya." PhD diss., University of Nairobi, 2019.] [Nsengiyumva, Alain O. "An Assessment of the Legal Status of Interim Orders of the East African Court of Justice." Tuma L. Rev. 6 (2020): 123.]
Challenges arise when enforcing interim awards in international disputes because different states use different legal procedures for executing orders. Furthermore, there are difficulties involved in the execution process because jurisdiction needs to be determined; first, that is, deciding which country's court system should take responsibility for executing the order. As a result, jurisdictions often refuse requests by another country's courts to recognise an order given by another jurisdiction over their territory. Thus, many claimants seeking enforcement of an interim award abroad are left with no option but to return home. Nevertheless, there are ways around these difficulties by utilising private companies specialising in cross-border enforcement. Such companies offer services including finding the respondent and serving documents on them within the relevant foreign country, providing help outside of what local authorities provide. In Kenya, the governing laws for the interim award include the Contracts Act, the Arbitration Act, and the Evidence Act.[Ferguson, Stephen M. "Interim measures of protection in international commercial arbitration: problems, proposed Solutions, and anticipated Results." Currents: Int'l Trade LJ 12 (2003): 55.] [SEBAYIGA, VIANNEY. "The right of appeal under section 35 of the arbitration act in Kenya: an analysis of the supreme court decisionin nyutu agrovet v airtel networks (2019)." (2021).]
Final arbitral awards
The final arbitral awards refer to the last ruling that can be made by an arbitrator or a tribunal following a specific set of rules and guidelines. They may also be awarded to determine compensation for harm suffered by one party due to another party's breach of contract, non-compliance with legislation, or negligence. Parties who file suit with this type of arbitration should also know that they will not be able to appeal the decision once it is made because it becomes binding and enforceable. Once a judgment is given, it can only be appealed if fraud or corruption was involved during the proceedings. The time limit for the enforcement of a final arbitral award