Post-Award Matters - Chapter 11 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition

James M. Gaitis is the former Director of the International Dispute Resolution and Management Programme at the Centre for Energy, Petroleum and Mineral Law and Policy, University of Dundee, Scotland, where he continues to serve as a member of the Global Faculty.

James R. Madison, Esq., Independent Arbitrator and Mediator, Menlo Park, California

Christi L. Underwood, Esq., Independent Arbitrator and Mediator, Orlando, Florida

David E. Wagoner, Esq., Independent Arbitrator and Mediator, Seattle, Washington

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In addressing post-award 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. INTRODUCTION

This chapter addresses best practices for arbitrators faced with issues that arise after an award is entered. Section II addresses limitations on changing or altering an award. Unless the parties have agreed otherwise, arbitrators may not change or modify a decision on the merits of a dispute after a final award is entered. Such awards may be modified or amended only in limited situations, and such modifications do not include changing the decision. The permitted grounds for modifying or amending an award are found in the common law, state arbitration acts, the FAA, and sometimes in the rules governing the arbitration proceeding.

Section III addresses an arbitrator’s duty when a reviewing court remands an arbitration award. Although remands are rare, arbitrators should respond timely to a remand order and in accordance with the court’s direction, while following ethical guidelines. A checklist of matters for arbitrators to consider when responding to a remand order is included at the end of Section III.

Section IV addresses certain ethical issues that might arise subsequent to the issuance of a final award. Ethical issues that have continuing relevance after the issuance of a final award include the duty of confidentiality, avoidance of inappropriate contact with counsel or parties, and the obligation to avoid making impermissible changes to final awards.

Table of Contents:

I. INTRODUCTION II. LIMITED GROUNDS FOR POST-AWARD RELIEF A. Doctrine of Functus Officio 1. Arbitrators’ Lack of Authority to Alter Determination on the Merits After Issuance of a Final Award 2. Exceptions to Functus Officio a. Clerical, Computational, and Similar Errors b. Submitted but Unadjudicated Issues c. Clarifications Regarding Intent of Award 3. Other Allowed Post-Award Authority B. Interrelationship Between the Functus Officio Doctrine, Institutional Rules, and Arbitration Law C. Sua Sponte Clarification of Awards and Corrections of Clerical and Similar Errors D. Checklist for Arbitrators to Consider Before Modifying an Award III. ISSUES ARISING ON REMAND OF FINAL AWARD A. Following the Court’s Remand Instructions B. Remands and Insufficient Arbitration Records C. Fees and Costs Incurred in Addressing Awards on Remand D. Checklist for Arbitrators Faced with Remand IV. POST-AWARD ETHICAL ISSUES A. Maintaining Confidentiality of the Arbitration Proceeding B. Assisting the Parties in Understanding the Award C. Post-Award Relationships with Parties and Counsel