Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

Even if one of the advantages of arbitration—as compared to the judicial system—is that parties may select the arbitrators based on their expertise, such competence does not render arbitrators immune from making mistakes. As Judge Posner said, “Arbitrators are no more infallible than judges. They make mistakes and overlook contingencies and leave much to implication and assumption.”1 

Of course, the nature and seriousness of mistakes can vary greatly from one case to another. Possible errors can fall into one or more of the following categories, which may receive—as we shall see—a different treatment: (i) errors of law, errors of the application of the law to the facts of a given case, and errors of fact—when the fact-finding conclusions are not reasonably drawn from the evidence presented to the arbitrators; (ii) errors that are apparent on the face of the award, as opposed to mistakes the assessment of which requires a revision of the record; (iii) errors that are simultaneous with the rendering of the award (i.e., errors arising from the award itself), and mistakes arising after the award is rendered, for example, because of a relevant contingency related to the final decision, but that occurs after such decision is rendered, and for which no solution is provided in the award; and (iv) errors that are “ministerial”—for example, typographical or clerical mistakes—as opposed to mistakes the identification and correction of which necessitates some elaboration—for example, some complex calculation that requires a re-assessment of the calculation basis. Within the last category we may include certain situations that the courts have labeled as “ambiguities” contained in the award, calling for clarification or completeness. In many cases, these categories may overlap, such as a typographical mistake that is obvious from the face of the award, and which can be identified as a mistake at the time the award is rendered. Moreover, it must be noted that the case law is often fuzzy in the categorizing of the mistake.2

This Note intends to analyze how these mistakes have been dealt with by (i) the courts reviewing awards containing such mistakes, as well as corrective awards that arbitrators might issue; (ii) the arbitrators themselves, when they identify an error after rendering the award, or when a mistake is brought to their attention by one of the parties, including a revision of the current arbitration rules of the major arbitral institutions; and (iii) by the parties, who may wish to provide for a solution in the eventuality that the award contains mistakes. The Note includes criticism of some of the current trends in the handling of the correction of mistakes and presents alternatives that I consider preferable.