‘1. On its own initiative, the arbitral tribunal may correct a clerical, computational or typographical error, or any errors of similar nature contained in an award, provided such correction is submitted for approval to the Court within 30 days of the date of such award. 2. Any application of a party for the correction of an error of the kind referred to in Article 35(1), or for the interpretation of an award, must be made to the Secretariat within 30 days of the receipt of the award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the arbitral tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. The arbitral tribunal shall submit its decision on the application in draft form to the Court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the Court may decide. 3. A decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. ...’
‘[32] The Award does not address [the Foundation’s] submissions as to the proper interpretation of Article 14 of the GCOC [which was a provision in relation to notification of claims for extension/prolongation costs] … [33] In particular, the Award does not deal with the submissions that: [33.1] Any entitlement to prolongation costs pursuant to Article 14.2 of the GCOC is limited to prolongation costs resulting from a change directed by [the Foundation]. [33.2] Any entitlement to prolongation costs pursuant to Article 14.2 is also subject to compliance with all relevant provisions of Article 14 of the GCOC and Appendix D to the Contract. [34] In its opening submissions for the April 2018 hearing, the [Foundation] noted that notice was a prerequisite to an entitlement to an extension of time.’
‘[43] In light of the matters set out above, the [Foundation] respectfully requests corrections to paragraphs 246, 261, 352, 353, 379, 393, 401 and 1003(1), (2), (4) and (5) of the Award. The corrections sought are for those paragraphs of the Award to reflect a dismissal of the Respondents’ claim for prolongation costs. Alternatively, the Claimant seeks an interpretation of the Award to make clear that any findings made to date are subject to addressing the arguments set out above which will be considered at a subsequent hearing. [44] The [Foundation] notes that this division of elements of entitlement is consistent with other aspects of the dispute. In relation to termination, defects were addressed in 3 separate awards, firstly whether the defects could be relied on for termination in that they were properly notified, secondly whether the defect existed and if it existed at the relevant dates and finally whether the defect justified termination. [45] In the premises where the Tribunal concludes that the claims for prolongation and disruption cannot be dismissed by way of interpretation or correction, the correct approach (indeed the only approach) is to correct or provide interpretation to the statements of entitlement to time and money to make clear that this is subject to addressing the arguments set out above which will be addressed at a subsequent hearing….’
‘[11] The provision for correction of the award is not aimed at substantive matters or at dealing with an interpretation of the award. The classic problems are a failure to insert a ‘not’ before a verb, or where it is evident that the award should read ‘claimant’ instead of ‘respondent’, or where the figures in the dispositive either do not add up or do not correspond to those in the discussion part of the award. [12] The authorities (see Gannet Shipping Ltd v Eastrade Commodities[2001] EWHC Comm 483 at paragraph 24) draw distinctions between errors affecting the expression of the Tribunal’s thought (which can be corrected) and errors in the Tribunal’s thought process (which cannot). Corrections to reflect ‘second thoughts’ are impermissible. [13] The purpose of giving the Tribunal the power to interpret the award under Article 35(2) of the ICC Rules is to permit the clarification of an award so as to allow its correct execution by the parties: It is not to be used to require the tribunal to explain, or to reformulate, its reasons. It does not provide an occasion for the reconsideration of the tribunal’s decision. Should this be the basis of the parties’ application, the tribunal will be quite justified in finding it unnecessary or inappropriate to render the requested interpretation … Interpretation thus consists of eliminating any ambiguities or uncertainties, if any, and clarifying the genuine meaning of the decision without modifying it. In other words, interpretation consists of restoring the true meaning of the decision where it has been improperly expressed in the operative part, where the latter is at odds with the findings or contains uncertainties or ambiguities. Interpretation does not entail a modification or an addition to the initial decision and thus cannot jeopardise res judicata. (Handbook of ICC Arbitration: Commentary, Precedents, Materials (2nd Ed) by Buhler and Webster paragraph 29-13) [14] A tribunal stated in an ICC case that ‘there is virtual unanimity that an application for interpretation cannot be used to seek revision, reformulation or additional explanations of a given decision.’ (See Handbook of ICC Arbitration: Commentary, Precedents, Materials (2nd Ed) by Butler and Webster at paragraph 36-18. [15] The Secretariat’s Guide to ICC Arbitration makes it clear that valid applications for interpretation should be rare: In practice, applications for interpretation (as opposed to correction) are rarely accepted. Most arbitral tribunals find that, to be admissible, a request for interpretation must seek to clarify the meaning of an operative part of the arbitral tribunal’s decision. Therefore, requests for interpretation should generally target the dispositive section or the parties’ rights and obligations. … Many applications for interpretation amount to attempted appeals aimed at altering the meaning of an award, raising an additional issue or attempting to have the arbitral tribunal reconsider its decision or the evidence. Article 35(2) does not empower an arbitral tribunal to revise the outcome or reasoning of its award. (The Secretariat’s Guide to ICC Arbitration: A Practical Commentary on the 2012 ICC Rules of Arbitration by Fry and Greenberg and Mazza (2012) at paras 3-12751276.) [16] Interpretation may eliminate any ambiguities or uncertainties and clarify the meaning of a decision without modifying it. In other words, interpretation consists of restoring the true meaning of the decision where it has been improperly expressed in the operative part, it contains uncertainties or ambiguities. [17] A party has no right to request that the Tribunal reconsider arguments which it has already submitted and on which it has already lost. Similarly, the Tribunal has no power to reconsider a decision under the guise of interpretation under Article 35. [18] The emphasis on the clarification of the operative parts of an award mean that the Tribunal must concentrate on paragraph 1003 of the Award. There are eight relevant sub-paragraphs which deal in turn with, for example, the length of extensions of time granted, lawful termination, calls on the Guarantee. Those are specific decisions which are justified, in the great majority of cases, by the text of the remaining parts of the award. But, on the whole, the Parties’ applications for interpretation do not rest upon an argument that any of these operative parts do not accord clearly with the reasoning contained in the Award. Rather, the complaint is that the reasoning contained in the award is, for various reasons defective or incomplete with the result that, were these defects corrected or missing parts completed, the decision would have to be different. These are classic cases not for the interpretation of the existing award but, rather, of an attempt to appeal the existing award, leading to different conclusions. Such application must fail in principle.’
‘67Challenging the award: substantive jurisdiction. (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court – a) Challenging any award of the arbitral tribunal as to its substantive jurisdiction; or b) For an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction. (3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order- a) confirm the award, b) vary the award, or c) set aside the award in whole or in part. (4) The leave of the court is required for any appeal from a decision of the court under this section. 68 Challenging the award: serious irregularity. (2) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (3) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant- a) failure by the tribunal to comply with section 33 (general duty of tribunal); b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties; d) failure by the tribunal to deal with all the issues that were put to it; e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers; f) uncertainty or ambiguity as to the effect of the award; g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy; h) failure to comply with the requirements as to the form of the award; or i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award. (4) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may – a) remit the award to the tribunal, in whole or in part, for reconsideration, b) set the award aside in whole or in part, or c) declare the award to be of no effect, in whole or in part. The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration. (5) The leave of the court is required for any appeal from a decision of the court under this section.’
‘ “substantive jurisdiction” in relation to an arbitral tribunal, refers to the matters specified in section 30(1)(a) to (c), and references to the tribunal exceeding its substantive jurisdiction shall be construed accordingly.’
‘30 Competence of tribunal to rule on its own jurisdiction. (1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to- a) Whether there is a valid arbitration agreement, b) Whether the tribunal is properly constituted, and c) What matters have been submitted to arbitration in accordance with the arbitration agreement.’
‘[17] … the challenge … on behalf of the Claimant was put not only by reference to s. 68 … but also by reference to s. 67 of the Act…. [18] S. 68 … specifically provides in s. 68(2)(b) that one of the grounds of challenge on the basis of serious irregularity is based upon the Tribunal exceeding its powers ‘(otherwise than by exceeding its substantive jurisdiction; see section 67)’
‘First, it is, in my view, more consistent with the ordinary language of section 30(1)(c), ie the only question in that context is to identify what matters have been submitted to arbitration. Secondly, I do not consider that the suggested ‘expansive approach’ [to the interpretation of s. 30] is supported by the cases referred to in Merkin and Flannery. Moreover, in my view, such suggested ‘expansive approach’ is contrary to the general principle as stated in section 1(c) of the 1996 Act … as well as the underlying thrust of the decision of the House of Lords in Lesotho. Thirdly, I do not accept that this reading of section 30(1)(c) is somehow ‘unfair’ or ‘uncommercial’ … This would perhaps be so if there were no other remedy available to an applicant in circumstances such as these apart from section 67 of the 1996 Act. However, … it seems to me that there is an available remedy under section 68(2)(b) of the 1996 Act. [Counsel for the applicant] countered by submitting, in effect, that this was not a sufficient or satisfactory remedy in particular because section 68 places additional hurdles in the way of an applicant – including the requirement of showing ‘substantial injustice’
‘Even if it was a nullity for the Arbitrators to accept corrections out of time in the circumstances to which I have referred, that does not amount to a substantive absence of jurisdiction. It would amount to a plain irregularity by the Arbitrators which, if there had been a substantial injustice, this court could correct….’