Is There a Life after the Award? - Chapter 1 - Post Award Issues: ASA Special Series No. 38

Alexis MOURRE is a Founding Partner of Castaldi Mourre & Partners, a twenty-five-lawyer firm with offices in Paris and Milan. He heads the international arbitration and litigation department of the firm. As of September 2010, he has acted in more than 130 ad hoc or institutional commercial arbitration proceedings as counsel, expert witness, coarbitrator, chairman or sole arbitrator. His arbitration experience includes, in particular, mergers and acquisitions, shareholders' agreements, joint ventures, competition, investment disputes, telecommunications, air and space, construction and energy. He is author, co-author or editor of several books, including Written Evidence and Discovery in International Arbitration (ICC Publishing, 2009), Droit judiciaire privé européen des affaires (Bruylant, 2003), Le nouveau droit communautaire de la concurrence (Bruylant, 2004), and Mondialisation, politique industrielle et droit communautaire de la concurrence (Bruylant, 2006). He is the director of the Paris Journal of International Arbitration/Cahiers de l'arbitrage, a leading French publication on arbitration and ADR. He lectures on arbitration in several universities and regularly intervenes as a speaker in seminars and congresses on international arbitration. He has published more than 80 articles on arbitration and private international law. Mr. Mourre is Vice-President of the ICC International Court of Arbitration and Senior Vice-Chair of the IBA Arbitration Committee. He is Vice-President of the ICC Institute of World Business Law and Member of the Arbitral Council of the Milan Chamber of Commerce. He is Member of the ICC international arbitration commission as well as of the ILA arbitration commission. He is Member of numerous associations, including the ASA, the LCIA, the Milan Club of arbitrators, and the Institute for Transnational Arbitration (Advisory Board). Mr. Mourre is fluent in French, English, Spanish and Italian. He has a working knowledge of Portuguese.

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Originally from Post Award Issues: ASA Special Series No. 38

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The question I have to address today as an introduction of our debates is: what is the status of the arbitrator after the award is made? In fact, the question would be better formulated as: when is the Arbitral Tribunal discharged of its duties and to what extent? That question raises issues that are common to arbitration and litigation, and others that are specific to arbitration.

1. The Link between Res Judicata and the Doctrine of Functus

The starting point of the reflection should be the jurisdictional nature of the arbitrator’s mission. The arbitrator is a judge, and his task is to resolve a legal dispute by a final decision. Once the arbitrator has decided all or part of the dispute, he has exhausted his jurisdictional powers with respect to his decision. He is then functus officio.2

This principle is well-know in common law: a judge exhausts its jurisdictional powers when he or she makes a final determination on the matters in dispute.3 It is also well known in civil law countries, under different names. In France, the principle is referred as the "dessaisissement du juge".4

This principle of "dessaisissement" or "functus" is not specific to arbitration. It applies to any judge. The Romans said: Lata sententia, judex desinit esse judex:5 once the decision is made, the judge ceases to be a judge.

The principle of functus officio is a consequence of a fundamental principle of civil proceedings, which is that of res judicata.6

The two principles of functus and res judicata do not, however, have exactly the same domain. There are situations in which an arbitrator may become functus without having accomplished his jurisdictional mission. Such is the case when an arbitrator validly resigns, when a challenge is successful or if, after the constitution of the arbitral tribunal, a competent court decides that there is no valid arbitration agreement between the parties (although, in such a case, it may be argued that the arbitrator was never vested with jurisdictional powers).