Chapter Thirteen: Postaward Matters - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
John K. Boyce, III, San Antonio, Texas
Paul J. Dubow, San Francisco, California
Larry R. Leiby, Ft. Lauderdale, Florida
James R. Madison, Menlo Park, California
Lawrence R. Mills, San Francisco, California
Stephen S. Strick, New York. New York/Los Angeles, California
Christi L. Underwood, Orlando, Florida
David E. Wagoner, Seattle Washington DEAD
In addressing postaward matters, arbitrators’ goals are to act promptly and appropriately while avoiding (1) alteration of the award, except on the limited grounds permitted by applicable law and rules; and (2) conduct that might give rise to allegations of partiality or bias.
I. LIMITED GROUNDS FOR POSTAWARD RELIEF
A. Doctrine of Functus Officio
An arbitration has a finite life. The common law doctrine of functus officio, which means essentially that the office (the appointed task) has been performed, holds that once arbitrators render a final decision, their power or jurisdiction over the parties and their dispute ends. The doctrine has been said to be based on an “unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion.” La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3d Cir. 1967). The doctrine is reflected in modern arbitration statutes, provider rules, and case law. Courts recognize that an arbitrator’s authority terminates and the arbitrator thus may be deemed functus officio when an award becomes enforceable by a court. See, e.g., Bosack v. Soward, 586 F.3d 1096, 1103 (9th Cir. 2009), cert. denied, 130 S. Ct. 522 (2010). “It is routinely applied in cases brought under the Federal Arbitration Act.” Hill v. Wackenhut Servs. Int’l, 971 F. Supp. 2d 5, 12 (D.D.C. 2013) (quoting Colonial Penn. Ins. Co. v. Omaha Indem. Co., 943 F.2d 327, 331 (3d Cir. 1991)).
Nonetheless, courts occasionally ignore the doctrine and remand cases to an arbitration panel without mentioning the doctrine, perhaps because they view it as “antiquated” and a relic of “the bad old days when judges were hostile to arbitration and ingenious in hamstringing it.” See Glass Molders, Pottery, Plastics & Allied Workers Int’l Union v. Excelsior Foundry Co., 56 F.3d 844, 846 (7th Cir. 1995) (quoting Courier-Citizen Co. v. Bos. Electrotypers Union No. 11, 702 F.2d 273, 278 (1st Cir. 1983)). The functus officio doctrine even has been described by some courts as “riddled with exceptions” and “hanging on by its fingernails.” See, e.g., E. Seaboard Constr. Co. v. Gray Constr., Inc., 553 F.3d 1, 4 (1st Cir. 2008) (quoting Glass Molders, 56 F.3d at 846).