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Procedural Background
This document contains the dissenting opinion of Arbitrator Horacio A. Grigera Naón concerning the Tribunal’s Decision on the Respondent’s Request for Correction and Interpretation of the Fourth Partial Award on Track III, submitted pursuant to Articles 35 and 36 of the 1976 UNCITRAL Arbitration Rules.
Analysis and Reasoning
The dissent addresses the majority’s treatment of the Respondent’s request to correct alleged errors under Article 36(1) of the UNCITRAL Rules. The underlying Fourth Partial Award applied a 15% reduction to the Claimants’ surviving damages claims, accounting for billing deficiencies and incorporating a margin of error due to the complexity of assessing incidental damages. Arbitrator Grigera Naón characterized the Respondent’s application not as a valid request to correct computational errors, but as an impermissible attempt to substantively modify the Tribunal’s merits determination.
Conclusion
The dissenting arbitrator concluded that the 15% reduction constituted a merits-based allocation of risk reflecting the practical difficulties of calculating damages from the evidentiary record, rather than a mathematical operation. Accordingly, he found that this substantive allocation of risk could not be challenged via the correction mechanism of Article 36(1), and determined that the Respondent’s application should have been rejected in its entirety.
