Press Releases

Solution to Functus Officio Problem in Modern Arbitration

The New York City Bar Association has propose a solution to the functus officio problem in modern arbitration. Under this doctrine, the report says, “arbitrators lack a clear source of power to correct errors…courts have barred arbitrators from correcting anything in final awards other than clerical, typographical or computational errors.”

According to the report, “The functus officio problem exposes significant shortcomings in the arbitral process: fundamentally, it may compromise the integrity of arbitral awards…[and] it compels otherwise needless resort to the courts to seek redress, with attendant delays, expense and uncertainty.”

The functus officio doctrine is also found in “slip rules” issued by institutional providers of arbitration and contractually adopted by parties. The report proposes that “providers revise their slip rules to permit motions for substantive corrections affecting the outcome in arbitral proceedings in carefully prescribed and limited circumstances.”

The report undertakes a historical survey of the functus officio doctrine; addresses the codification of the doctrine found in the rules of multiple institutional providers of arbitration services as well as in both the Federal Arbitration Act and New York State’s CPLR; discusses and critiques key cases that have addressed the doctrine or related provider rules in recent years; and assesses the many challenges for the arbitral process created by the current application of the doctrine and the provider rules embodying it.

Read the report here: