Abstrakt
The Arbitration Committee of the New York City Bar Association has recently published a report titled: "The Functus Officio Problem in Modern Arbitration and a Proposed Solution" (the "Report"). In United States arbitration, the functus officio doctrine instructs that once an arbitrator finishes performance of her office, i.e., renders an award, her authority as an arbitrator is exhausted.
The doctrine effectively establishes finality of arbitral awards by stipulating that arbitrators do not have the authority to alter an award after it was rendered (save for very narrow circumstances). The titular problem in the Report is that the contemporary application of the functus officio doctrine is surprisingly chaotic, which as a result undermines the finality of awards it was meant to protect.
The proposal in the Report is to offer parties an opt-in rule, which would authorize arbitrators to rectify their award (i.e., make substantive corrections) within a strictly short timeframe after an award is rendered. The intended effect of the Report's proposal is to allow parties to expressly decide on the scope of post-award review at the outset of proceedings to limit the risk of costly post-arbitration litigation.