Chapter Twelve: Awards and Substantive Interlocutory Arbitral Decisions -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 A. Barrett, Houston, Texas
Thomas J. Brewer, Seattle, Washington
Jay W. Elston, Houston, Texas
Richard A. Levie, Washington, DC
John Burritt McArthur, Berkeley, California/Houston, Texas
Michael S. Oberman, New York, New York
Michael S. Wilk, Houston, Texas
Arbitrators must ensure that awards and substantive interlocutory arbitral decisions are (1) clear, (2) supported by the evidence and law, (3) appropriate to the circumstances of the particular case, and (4) consistent with the arbitrators’ and the parties’ intent relating to timeliness, finality, form of award, and the scope of the arbitrators’ authority.
Before issuing awards and other substantive decisions, arbitrators should become familiar with controlling legal principles regarding the finality of arbitral awards and decisions, their potential ripeness for immediate judicial review, and the doctrine of functus officio.
Most arbitral rules expressly permit the issuance of a broad array of substantive arbitral decisions, such as orders, rulings, final awards, partial final awards, interim awards, and interim measures. See, e.g., AAA Rules R‑33, R‑47(b); CPR Non-Administered Rule 15.1; JAMS Rule 24(d). (For the sake of convenience, this chapter refers to the entire panoply of arbitral decisions adjudicating jurisdictional and arbitrability issues, as well as issues relating to the merits of the parties’ claims and defenses, as substantive arbitral decisions.)
Unfortunately, most institutional rules generally fail to define the intended and legal differences of those instruments, just as they fail to define the contours of the different forms of awards and their differing levels of detail, or do so only in ambiguous terms. See, e.g., AAA Rule R-33 (permitting the arbitrator to issue “rulings” rather than awards on dispositive motions). As a result, arbitrators sometimes fail to use consistent nomenclature to describe their arbitral decisions and thereby run a variety of risks associated with the applicable law regarding the finality of arbitral awards and decisions and the question whether the pertinent arbitral decision might be ripe for immediate judicial review even if it is not final.