Postaward Matters - Chapter 12 - College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 3rd Edition

Page Count: 

18 pages

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1 PDF Download

Published: 

January, 2014

Practice Areas: 

Commercial Disputes,

Practice & Procedure

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Functus Officio

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Originally from: College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration

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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 holds that once arbitrators render a final decision, they cease to have jurisdiction over the dispute or the authority to alter their decisions. This doctrine was originally 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 remains relevant in contemporary case law and arbitration practice largely because courts consistently recognize that an arbitrator’s authority terminates, and the arbitrator thus is deemed functus officio, simultaneously with the time at which 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).

 

Nonetheless, some courts are reluctant to apply the functus officio doctrine. Indeed, courts occasionally ignore the doctrine altogether and remand cases to an arbitration panel without even mentioning the doctrine, perhaps because they view the doctrine 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. Boston Electrotypers Union No. 11, 702 F.2d 273, 278 (1st Cir. 1983)). The functus officio doctrine by some courts as "riddled with expection" and "hanging on by its fingernails."