Awards and Substantive Interlocutory Arbitral Decisions - Chapter 11 - College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 3rd Edition

Arbitrators must ensure that awards and substantive interlocutory arbitral decisions are (1) clear, (2) supported by the evidence and law, (3) appropriate to the circumstances of the particular case, and (4) consistent with the arbitrators’ and the parties’ intent relating to timeliness, finality, and the scope of the arbitrators’ authority.

I. INTRODUCTION

Before issuing awards and other substantive decisions, arbitrators should become familiar with controlling legal principles regarding the finality of arbitral awards and decisions, their potential ripeness for immediate judicial review, and the doctrine of functus officio.

Most arbitral rules expressly permit the issuance of a broad array of substantive arbitral decisions, such as orders, rulings, final awards, partial final awards, interim awards, and interim measures. See, e.g., AAA Rule R-33 and R-47(b); CPR Ad Hoc Rule 15.1; JAMS Rule 24(d). (For the sake of convenience, this chapter refers to the entire panoply of arbitral decisions adjudicating jurisdictional and arbitrability issues, as well as issues relating to the merits of the parties’ claims and defenses, as substantive arbitral decisions.) Unfortunately, most institutional rules generally fail to define the intended and legal differences of those instruments or do so only in ambiguous terms. See, e.g., AAA Rule R-33 (permitting the arbitrator to issue “rulings” rather than awards on dispositive motions). As a result, arbitrators tend to use varying nomenclature to describe their arbitral decisions and thereby run a variety of risks associated with the applicable law regarding the finality of arbitral awards and decisions and the question whether the pertinent arbitral decision might be ripe for immediate judicial review even if it is not final.