What is the status of the arbitrator after the award is made? The question would be better formulated as: when is the arbitral tribunal discharged of its duties and to what extent? That question raises issues that are common to arbitration and litigation, and others that are specific to arbitration.
I. THE LINK BETWEEN RES JUDICATA AND THE DOCTRINE OF FUNCTUS
The starting point of the reflection should be the jurisdictional nature of the arbitrator’s mission. The arbitrator is a judge, and his task is to resolve a legal dispute by a final decision. Once the arbitrator has decided all or part of the dispute, he has exhausted his jurisdictional powers with respect to his decision. He is then functus officio.1
This principle is well-know in Common law: a judge exhausts his jurisdictional powers when he or she makes a final determination on the matters in dispute.2 It is also well known in civil law countries, under different names. In France, the principle is referred to as the “dessaisissement du juge”.3