May 23, 2019 Articles

Ambiguity in Final Award Is Exception to Functus Officio Doctrine

The Second Circuit joined the Third, Fifth, Sixth, Seventh, and Ninth Circuits in adopting an exception to the doctrine where the arbitral panel is clarifying an ambiguous award.

By Sunu M. Pillai

The arbitrators’ authority ends once they have fully exercised their authority to adjudicate the issues submitted to them. This doctrine is known as “functus officio.” The traditional rationale underlying the functus officio doctrine is to prevent reexamination of an issue by a nonjudicial officer potentially subject to outside communication and unilateral influence. The Second Circuit, in General Re Life Corp. v. Lincoln National Life Insurance Co., 909 F.3d 544 (2d Cir. 2018), joined the Third, Fifth, Sixth, Seventh, and Ninth Circuits in recognizing an exception to the functus officio doctrine, where an arbitral award is susceptible to more than one interpretation or when it fails to address a contingency that later arises.

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