Manifest Disregard can, in some jurisdictions, be grounds for a court to overturn an arbitral award. However, it applicability is highly variable across international jurisdictions and it is not necessarily enough on its own for a successful appeal, but often one of a number of factors considered by a court, such a procedural irregularities, obvious unfairness, etc. that cumulatively lead a court to conclude the arbitral award must be set aside. Generally, for a court to find there was manifest disregard, the applicable law must:
- have been brought unambiguously to the attention of the tribunal;
- it should be apparent that the tribunal was aware that this was, or was likely to be the applicable law; and
- the tribunal demonstrably ignored the law.
For this reason, if a tribunal appears intent on flouting applicable law, counsel for the party prejudiced by this action should take care to develop a clear record of the law and its applicability being brought to the tribunal’s attention. In some arbitration organisations a tribunal decision is sent to the organisation for ‘confirmation’ of the award – the presence of a clear record of manifest disregard might cause them to return/remand the award to the tribunal for review and correction, for example under Articles 27 and 34 of the ICC Rules.
Before signing any award, the arbitral tribunal shall submit it in draft form to the Court. The [International] Court [of Arbitration] may lay down modifications as to the form of the award and, without affecting the arbitral tribunal’s liberty of decision, may also draw its attention to points of substance. No award shall be rendered by the arbitral tribunal until it has been approved by the Court as to its form.