Arbitral mistakes continue to create problems. The case here discussed, Sawtelle v. Waddell & Reed, Inc., provides a striking example. When a judge makes a mistake, if caught in time, it can generally be corrected by the judge him or herself. And if the mistake is discovered after judgment, it can, if timely addressed, also be corrected by the judge that made it or, on review, by an appellate court.
In arbitration, correcting mistakes is not that simple. The wholesale application of the doctrine of functus officio, coupled with institutional rules that permit correction by the arbitrator only of computational, clerical and other similar errors, create difficulties when the error is not of the obvious kind contemplated by the institutional rules. In such a case, the institutional rules and the functus officio doctrine do not permit the arbitrator to make the correction and the courts must come to the rescue. However,[...]