More than a decade ago I provided a case comment for an edition of this handbook about a case then recently decided in the U.S. Seventh Circuit Court of Appeals concerning the eligibility for confirmation or vacatur under the Federal Arbitration Act (“FAA”) of arbitral decisions other than those that put an end to the entire arbitration. That case, Publicis S.A. v. True North Communications Inc., 206 F.3d 725 (7th Cir. 2000) held that an “order” issued by an international arbitral tribunal for delivery of certain tax records by one former joint venture partner to the other, which was not a discovery matter but a requirement for the recipient’s compliance with IRS and SEC filing requirements, was a final disposition of a dispute between the parties even though other disputes remained open in the same case, and so the “order” deserved to be treated as an “award” under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and its implementing legislation Chapter 2 of the FAA.
That decision is now 15 years old, and on the occasion of the publication of a new edition of this handbook it seems suitable to consider how much clarity has been gained in the case law about when an arbitral decision that is not merely procedural but that leaves the arbitration unfinished may yet be considered an “award” that is “final” for purposes of judicial proceedings under the FAA to confirm or vacate the decision. That case law informs not only the litigation strategies of parties in receipt of such decisions, but also the actions of arbitral tribunals invited to issue such decisions and facing the conundrum of what to call them.