Arbitration is conducted among parties, arbitrators, and witnesses from different countries. Thus, in the event the arbitration process will be conducted online, the award consequently should also be rendered online. Such an award is not different from the traditional paper-based award in theory, however, in practice there are various differences that shall be discussed in the following paper.

Rendering an E-award

The E-award is rendered online, and notified to the parties whether by being published on the institution site granting access only to the parties for confidentiality considerations or by being sent to them via digitally signed e-mail with acknowledgement of receipt to their e-mail addresses or even by sending a hard-copy version of the award by registered mail. A hard-copy version of the award is also necessary to enable the arbitral institutions to keep and archive awards. The constant evolution of technical standards in the area of computer archiving platforms is a threat to this activity in the long term. In these circumstances, such a well-known arbitral institution as the ICC has chosen to continue to archive awards in hard copy, even when an arbitration is conducted online.

Similar to the traditional arbitration award, the E-award shall be binding unless the parties agreed otherwise.

Once an E-award is notified to the parties, the arbitral institution will close the e-file and will ask the parties to comply with the E-award. Once an E-award has been rendered and notified, the losing party must comply with the award voluntarily or seek to set it aside while the winning party may seek to have the award recognized before the national courts of the state of enforcement and thus be enforced, like any other traditional arbitral award.

Various national laws regulating arbitration do not require a certain form for the arbitral award to be recognized before the courts, or they state that the form of the arbitral award shall be according to what the parties agree upon, hence accepting the award in its electronic form is permitted. Such national laws include the following examples; In the UK, a common law jurisdiction, Section 52 of the Arbitration Act of 1996 provides, inter alia, that the parties are free to agree on the form of an award.

Similarly, in Switzerland, a civil law jurisdiction, Article 189(1) of the Swiss Code on Private International Law, entitled Arbitral Award, provides that the arbitral award shall be rendered according to the procedure and in the form agreed upon by the parties. Apart from that, in The Netherlands, the Arbitration Act contained in the Code of Civil Procedure provides in Article 1072(b)(3) that an arbitral award may be made and signed electronically.1

However, some other national laws require a written award for recognition, so the institution issuing the E-award shall issue a sealed printed copy of the E-award signed by the arbitrators and send it to the parties via regular mail. In conformity with this direction, the Egyptian Arbitration Law No.27/1994, Part V, Article 43, states:

" 1. The arbitral award shall be made in writing and shall be signed by the arbitrators. If the arbitral tribunal consists of more than one arbitrator, the signatures of the majority of the arbitrators shall suffice, provided that the award states the reasons for which the minority did not sign.

2. The arbitral award shall state the reasons upon which it is based, unless the two parties to arbitration have agreed otherwise or the law applicable to the arbitral proceedings does not require the award to be supported by reasons.

3. The arbitral award shall include the names and addresses of the parties, the names, addresses, nationalities and titles of the arbitrators, a copy of the arbitration agreement, a summary of the parties' requests, submissions, documents, the operative part of the award, date and place of making, as well as the reasons whenever their inclusion is required."2

In the same context, The CRCICA rules, Section V: The Award, Article 34: From and Effect of the Award, states:

"2. All awards shall be made in writing and shall be final and binding on the parties. The parties shall carry out all awards without delay...

4. An award shall be signed by the arbitrators and it shall contain the date on which the award was made and indicate the place of arbitration. Where there is more than one arbitrator and any of them fails to sign, the award shall state the reason for the absence of the signature.

5. Originals of the award signed by the arbitrators shall be communicated to each of the parties."3

The ratification and binding force of the e-award

According to the Egyptian Arbitration Law No.27/1994, Part VII "Recognition and Enforcement of Arbitral Awards", Article 56 states:

"..........,The application for enforcement of the arbitral award shall be accompanied by the following:

1. The original award or a signed copy thereof.

2. A copy of the arbitration agreement.

3. An Arabic translation of the award, certified by a competent organism, in case the award was not made in Arabic.

4. A copy of the procès-verbal attesting the deposit of the award pursuant to Article 47 of this Law."

The question remains: to what extent can an E-award be binding and ratified in a manner similar to the traditional award?

In theory, an inspired analysis of the functional-equivalent principle and the general acceptance of electronic documents would lead one to believe that an electronic award accompanied by the secure signature of the arbitrators meets the requirements of form set by the law and by international agreements. However, in practice, the successful party needs the agreement of the ratifying judge of the state in which the assets of the losing party are located. State courts and ministerial officers do not necessarily have the necessary computer resources to receive, examine and archive electronic awards.

A practitioner concerned about the international efficacy of an award would therefore be well advised to obtain a hard-copy original as well, signed by the arbitrators. This hybrid solution is necessary for the time being, until all State courts where the award may be enforced have become computerized.

However, the Egyptian legislator has regulated how electric documents are to be used as a mean of proof, in the Law of the Electronic Signature No.15/2004 and its Executive Regulation. According to which, the judgment of the Egyptian Court of Cassation in the Challenge no.17689 in 10/03/2020, stated the following principles:

Despite writing being the prevailing origin, however, the legal document was never at any time limited to what is written on paper only, as all that the legislator requires as proof is proving that the document is attributed to its owner. Moreover, legally, there is no relevance between the notion of writing and papers.

Therefore, writing on paper in the traditional sense along with a handwritten signature is not required, which leads to the necessity to approve all other kinds of proof whether they were in paper or electronic or in any other material.

The e-mail is a mean of electronic messages exchange between people using electronic devices such as computer devices or mobile phones or other kinds of devices, such mean is characterized by the advantage of messages arrival from the addressor to the addressee in a time parallel to the time of their sending or after a short while through the internet web, whatever was the printing mean of its extract in the place of its receiving, and whether such messages include documents or attachments or not.

In the event of electronic contracting, the national laws along with the international conventions authorize the judge to deduce the offer and the acceptance from these electronic messages without requiring it to be written in a paper signed by its parties, as such messages are being exchanged through the internet web, therefore, the originals of the messages are kept preserved/saved by their parties the sender and recipient, however many parties were there, in their electronic devices, as well as its preservation in its main store inside the internet web in the computer servers of the companies that provide the public with e-mail service, as such messages are understood to be the electronic document's data.

In all cases, in the case of invoking a plea of denial of photocopies, the sender of the e-mail cannot present the originals of the electronic document, as all electronic devices extracts are just printed paper copies free from its parties signature, so therefore, and in the sake of not wasting the rights of the practitioners through such modern electronic means in case they do not have materialistic proofs on their transactions, the legislator, through issuing the law regulating the electronic signature and its executive regulation, has regulated the rules which aim at the confirmation of the authority which sent the electronic documents and the authority(ies) receiving them, as well as ensuring that there was no human intervention or manipulation in such documents to falsely prove their authenticity.

Moreover, the fact that the electronic messages (e-mail) are received in an electronic form does not prevent them from being considered as an evidence of proof, that is why they are not subject to the plea invoked by the opponent regarding the denial of such messages extracts and insisting on presenting the original documents; that is because such extracts are just the writing of the content of the e-mail, or any other electronic mean of communication.

So, whoever denies such messages shall only be left with a sole solution which is to claim forgery according to the legally stated procedures in order to benefit from the technical expertise in this regard.

Based on the foregoing, it is obvious that E-awards are considered the same as traditional awards, nevertheless, the practical issues of such awards usually arise due to the fact that not all courts are computerized yet, besides the fact that not all states are on the same technological level. However, the need to resort to such electronic manner of rendering an award has become essential nowadays to pursue the ongoing arbitrations under the COVID-19 crisis.

Footnotes

1. UNCTAD. https://unctad.org/en/Docs/edmmisc232add20_en.pdf.

2. The Egyptian Arbitration Law promulgated by Law No.27/1994.

3. CRCICA Rules https://crcica.org/Arbitration_rules.aspx#_idTOCAnchor-93 .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.