Managing Counsel, ArbBoutique
A very common, almost fixture-like, request for relief in international arbitration is that the arbitral tribunal grant “such further and/or other relief as it may deem appropriate”. There are several variations of this formulation. Common examples include: “such further or other relief as the Tribunal may deem appropriate”, “any other relief the Tribunal considers appropriate”, or “such other relief as the Tribunal considers just and proper”.
This request usually appears at the end of an otherwise carefully and specifically drafted prayer for relief. Its ostensible purpose? To operate as a catch-all or safety-net, preserving room for relief that a party may not have expressly requested (or perhaps even thought of).
Yet, it is often unclear whether counsel really regards this as an effective request upon which an arbitral tribunal may grant relief. I say this because there is typically little to no discussion of, or engagement with, the request by either party. The requesting party does not ordinarily specify what might be covered by this request, let alone substantiate how far the tribunal may go in relying upon it, and the opposite party rarely objects to its inclusion. In my experience, standard reservations of rights receive more attention in the drafting and engagement process than this request for relief does.
This is rather remarkable considering the breadth of the request, which, read literally, could almost be viewed as an invitation to the arbitral tribunal to devise and grant whatever remedy it considers appropriate.
I suspect that, in many cases, this prayer is one of those formulations that gets passed down from draft to draft. Counsel includes it because counsel before them, presumably in all their wisdom, included it.
I have also rarely seen arbitral tribunals expressly engage with this request for relief, save at the final stage of drafting the award and specifically in the dispositif.
My own experience, undoubtedly owing to the facts of the cases that were before me, has generally been to address this request by stating that the tribunal does not consider that circumstances exist that would warrant granting any further or other relief beyond that specifically requested by the parties.
Recently, however, I was involved in a matter in which the tribunal actively engaged with the possibility of using this catch-all request to grant relief that had not been precisely requested by either party. The underlying issue was not a particularly novel one. The question was, in substance, whether the tribunal could grant declaratory relief that differed in scope and formulation from the precise relief sought by the parties. Some members of the tribunal contemplated the possibility of relying on the innocuous request for “such further and/or other relief as the tribunal may deem appropriate” to bridge the gap.
The discussion prompted a broader debate within the tribunal about the limits of an arbitrator’s decision-making power. Some familiar instincts surfaced: Judges in some jurisdictions have the latitude to formulate an appropriate remedy; perhaps arbitrators can too. At another point, the divergence of views was attributed to the different instincts that civil-law and common-law lawyers bring to the table.
While, ultimately, the tribunal refrained from relying on the catch-all request for relief in its decision, this discussion made me look at this familiar, almost boilerplate request more closely. I came away with three practical thoughts.
First, the catch-all request for relief is not a blank cheque for the arbitral tribunal. It does not give the tribunal unrestricted licence to cure deficiencies in a party’s prayer for relief or to award relief that, in the tribunal’s view, was obvious (and necessary) but was not actually sought. By doing so, the tribunal risks rendering an award ultra petita and exposing it to setting aside. Under Article 1717(3)(a)(vi) of the Belgian Judicial Code, an award may be set aside where the arbitral tribunal has exceeded its powers – this ground may be engaged where the tribunal decides on a claim that was not raised by the parties or grants a relief beyond that requested by the parties. Article 1721(1)(a)(vii) of the Belgian Judicial Code contains a corresponding ground for resisting recognition and enforcement of an award in Belgium. There is a nuanced distinction between granting relief that is inherent in or consequential upon the relief actually sought and granting a genuinely different remedy. While the latter presents the more obvious ultra petita concern, the former should also be approached with care, particularly where the precise form of relief was not addressed by the parties, as suggested in the second point below.
Second, if a tribunal is considering relying on the catch-all request to grant a distinct form of relief from that specifically requested by the parties, it should raise the issue with the parties and give them an opportunity to comment. Otherwise, the tribunal risks violating the parties’ right to be heard. Under Belgian law, Article 1699 of the Judicial Code requires that the parties to the arbitration be treated equally and that each party be given a full opportunity to present its case. Depending on the circumstances, a failure to afford such opportunity may provide a ground for setting aside under Article 1717(3)(a)(ii) or for resisting recognition and enforcement of the award under Article 1721(1)(a)(ii) of the Belgian Judicial Code.
This is particularly important in the context of the catch-all request for relief. Its generic wording gives the opposite party no meaningful indication of the particular relief that might ultimately be granted under its umbrella. In these circumstances, it would be difficult to maintain that a party had a genuine opportunity to address a remedy that was never actually identified. The tribunal must, however, tread carefully here, mindful that in inviting comments it does not step into the shoes of a party and effectively advance a case or introduce a claim that the party itself did not make.
Third, for counsel, the catch-all request for relief should not be relied upon as a mechanism for the tribunal to do counsel’s job. Requests for relief should be formulated carefully and comprehensively, and counsel should not assume that a broadly worded residual prayer will enable the tribunal to fill the gaps.
The catch-all request for relief should, therefore, be handled with care. Counsel should not treat it as mere boilerplate or assume that it will cure gaps in their prayer for relief. Arbitrators should exercise restraint in relying on it and, if they contemplate doing so to grant relief not otherwise clearly sought, invite comments from the parties first.