Extension and Resumption of the Function after the Final Award - Chapter 6 - Post Award Issues: ASA Special Series No. 38

Andrew FOYLE is a Barrister. He was called to the English Bar and joined the chambers, One Essex Court, in 2006 to develop his practice as an arbitrator in international arbitration. Prior to that, he had been a solicitor and was a partner at Lovells for twenty-four years where he was head of the firm's international arbitration practice (from 1998 to 2006) and was Senior Partner of the Hong Kong office (from 1994 to 1998). He has been a Member of the International Court of Arbitration of the International Chamber of Commerce since 2006 and is a Member of the Drafting Sub-Committee of the ICC Task Force which is revising the ICC Rules of Arbitration. Mr. Foyle is a Fellow of the Chartered Institute of Arbitrators and a Member of the LCIA. He is the immediate past Chair of the IBA Arbitration Committee’s Sub Committee on the Recognition and Enforcement of Arbitral Awards. He is also the editor of Dispute Resolution International, a journal launched by the IBA in 2007.

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

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The title of this chapter represents a challenge for any speaker for two reasons. First, after the tribunal has issued its final award it is functus officio. That means its mission is complete. There is nothing more for it to do.

There are, however, exceptions. This represents the second challenge because the exceptions I might talk about have already been covered extensively by my colleagues on this panel. As we know the tribunal may correct and interpret its award and it may revise the award if it is remitted to it by the competent court, for example because the award does not determine all the disputes referred to it.

Furthermore, Michael Schneider in his written introductory comments to this program referred to other duties and functions of the tribunal post award, such as notification of the award, accounting for funds, decisions on fees and giving evidence in proceedings. Apart from these exceptions, the short answer is that after the tribunal has issued its final award the tribunal's mission is complete. The same principle applies to any partial award, in relation to the matters decided in that partial award.

The question, however, implicit in the title of this topic, is whether this is a desirable state of affairs. Are there situations where the tribunal should continue or should resume its function? If so, how might this be achieved?

In discussing this, I will distinguish between two different situations, which give rise to different considerations. First, whether the tribunal should be able to resume its function in relation to the subject matter of the original proceedings. Second, whether the tribunal's function could be extended to deal with new matters and disputes between the same parties? There may be a grey area which lies between the two situations where it is not clear whether the issue relates to a matter already considered and decided by the tribunal or whether it is a new matter.