By Nelson Timken*
What is Functus Officio?
The term functus officio is translated from Latin as "having performed his or her office". The general meaning of the term has historically been understood to be that an officer or official body, once having accomplished its intended task, loses its authority or legal competence. This term evolved into a legal doctrine, originally developed to prevent English judges from modification of their judgments after being rendered. In arbitration law, functus officio emerged as a common law doctrine giving expression to the finality of arbitral awards by defining when the arbitrators' power to act is exhausted. Considering the contractual and temporary nature of arbitrators' mandate, the common law doctrine of functus officio holds that (subject to narrowly defined exceptions) arbitrators are prevented from altering their awards after they are rendered.
The functus officio doctrine "is applicable only once the arbitrator's assigned duties have come to an end." "The functus officio doctrine dictates that, once arbitrators have fully exercised their authority to adjudicate the issues submitted to them, their authority over those questions is ended, and the arbitrators have no further authority, absent agreement by the parties, to redetermine those issues. "The traditional rationale underlying this rule is that it is necessary to prevent reexamination of an issue by a nonjudicial officer potentially subject to outside communication and unilateral influence.”
But the practical effect of the rule is that it sometimes conflicts with the arbitral goals of economy and finality by restricting arbitrators from clarifying, correcting and revisiting their determinations when they realize there has been a substantive error on their part. In addition, if the tribunal makes a correction, the party whose interests are not served by the correction is likely to seek vacatur of the amended award, claiming that it was prohibited by the doctrine of functus officio. Courts are also precluded from making corrections and clarifications by the limited grounds for judicial review of arbitral awards. The FAA grounds for review of an arbitral award are limited to (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. Furthermore, many institutional providers have rules which make it difficult to clarify, correct or modify awards, particularly as to their merits. The policy behind this is best expressed as follows:
"To encourage and support the use of arbitration by consenting parties," the Court "uses an extremely deferential standard of review for arbitral awards." Porzig, 497 F.3d at 139 [*13] . In reviewing arbitration awards under § 10(a) of the FAA, a court "will uphold an award so long as the arbitrator 'offers a barely colorable justification for the outcome reached.'" Jock v. Sterling Jewelers Inc., 646 F.3d 113, 122 (2d Cir. 2011) (quoting ReliaStar Life Ins. Co. of N.Y. v. EMC Nat. Life Co., 564 F.3d 81, 86 (2d Cir. 2009)). "It is not enough ... to show that the panel committed an error — or even a serious error. It is only when an arbitrator strays from interpretation and application of the agreement and effectively dispenses his own brand of industrial justice that his decision may be unenforceable." Stolt-Nielsen S.A. v. Animal Feeds Int'l Corp., 559 U.S. 662, 671,130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010) (internal citations and quotation marks omitted). "In other words, as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, a court's conviction that the arbitrator has committed serious error in resolving the disputed issue does not suffice to overturn his decision. "
Exceptions to the Doctrine
Both common law, and the provisions of various institutional providers recognize two exceptions to the functus officio doctrine: correction of an obvious typographical or computational error, and clarification of ambiguities that might prevent enforcement or compliance with the award. In addition, functus officio will not apply where all issues have not been decided by the panel. As the Court in Three Bros. Trading, LLC v Generex Biotechnology Corp., stated:
[O]nce arbitrators have finally decided the submitted issues, they are ... 'functus officio,' meaning that their authority over those questions is ended." Trade & Transp., Inc., 931 F.2d at 195. On the other hand, "'where the award does not adjudicate an issue which has been submitted, then as to such issue the arbitrator has not exhausted his function and it remains open to him for subsequent determination.”
Courts, including the New York Court of Appeals, that dared not invoke the doctrine to set aside an arbitral award have, as we shall see, instead circumvented that conclusion by instead finding that the award did not determine all issues submitted to the panel, hence functus officio did not apply based upon the facts.
Noted International Arbitration Professor Gary Born has observed “many modern arbitration statutes provide mechanisms that allow parties to request (and arbitrators to make) ’corrections’ to, ’interpretations’ of, or ’supplementations’ to an award. In most states, the circumstances in which these types of changes can be made are very narrowly circumscribed. Nonetheless… the existence of these powers provide[s] grounds for addressing obvious slips or miscalculations, [or] omissions, [that] could otherwise cause injustice or lead to annulment of the award.”
In addition, because functus officio is a default rule, decisional case law has recognized that parties can accede to other modes of corrections to awards either by express provision in contracts or by agreeing to the rules of various institutional providers, such as the ICDR, whose provider rules provide only for non-substantive corrections:
Article 36: Interpretation and Correction of Award
- Within 30 days after the receipt of an award, any party, with notice to the other party, may request the arbitral tribunal to interpret the award or correct any clerical, typographical, or computational errors or make an additional award as to claims, counterclaims, or setoffs presented but omitted from the award.
- If the tribunal considers such a request justified after considering the contentions of the parties, it shall comply with such a request within 30 days after receipt of the parties’ last submissions respecting the requested interpretation, correction, or additional award. Any interpretation, correction, or additional award made by the tribunal shall contain reasoning and shall form part of the award.
- The tribunal on its own initiative may, within 30 days of the date of the award, correct any clerical, typographical, or computational errors or make an additional award as to claims presented but omitted from the award.
- The parties shall be responsible for all costs associated with any request for interpretation, correction, or an additional award, and the tribunal may allocate such costs.
Another preeminent provider, the AAA, has the following functus officio rule in its Commercial Arbitration Rules for correction of awards:
R-50 - Modification of Award
Within 20 calendar days after the transmittal of an award, any party, upon notice to the other parties, may request the arbitrator, through the AAA, to correct any clerical, typographical, or computational errors in the award. The arbitrator is not empowered to redetermine the merits of any claim already decided. The other parties shall be given 10 calendar days to respond to the request. The arbitrator shall dispose of the request within 20 calendar days after transmittal by the AAA to the arbitrator of the request and any response thereto.
UNCITRAL Arbitration Rule 38 similarly provides:
Rule 38 - Correction of the Award
- Within 30 days after the receipt of the award, a party, with notice to the other parties, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within 45 days of receipt of the request.
- The arbitral tribunal may within 30 days after the communication of the award make such corrections on its own initiative.
- Such corrections shall be in writing and shall form part of the award. The provisions of article 34, paragraphs 2 to 6, shall apply.
There are several obvious issues with the institutional provider rules as written. First, the proponent of an amended award must demonstrate that the correction was technical, rather than substantive. The tribunal must also issue its award in a manner suggesting that the amendments were corrective rather than going to the merits. The process before federal courts, as we shall see, renders the process time consuming and onerous, thereby frustrating arbitration as a dispute resolution modality. The interplay between federal common law and provider rules injects an element of uncertainty into the process. It has been strongly argued that the version of functus officio exemplified by provider rules in no way contributes to a more expeditious, cost-effective, and predictable arbitration.
The concept of deference to the authority conferred upon an arbitrator by the parties, an exception which appears in decisional authority, has led to judicial ratification of more expansive powers of revision and correction, as will be demonstrated in the subsequent case analyses. Others, such as the prestigious Arbitration Committee of the New York City Bar Association, have advocated for the revision of institutional rules to permit substantive corrections affecting the outcomes in arbitral proceedings under somewhat carefully prescribed and limited circumstances.
The following is a discussion of how courts in the Second Circuit have addressed the concept, how arbitral institutions have handled the issue, and proposals for arbitration reform in light of the effects of functus officio.
Remand to AAA for Resolution of Ambiguity
In Hyle v Doctor's Assoc., the arbitrator's original award, in favor of the defendant, in a AAA arbitration, granted relief against plaintiff's partner, although defendant stated it was proceeding only against the plaintiff. The arbitrator issued a "Corrected Arbitration Award" concerning the identity of the party against whom an arbitrator ordered relief, replacing Gruelich's name with Hyle's name in the paragraphs pertaining to damages and injunctive relief.
In district court, plaintiff moved to confirm the original award and vacate the corrected award. The court denied confirmation of the original award, confirmed the corrected award, and remanded for clarification in accordance with the court's ruling. Plaintiff appealed. The appellate court held that the award's wording, in conjunction with the limitation announced by defendant as to whom it was proceeding against, created an ambiguity as to whom the arbitrator intended to award relief against. The district court should have remanded without restriction for resolution of the ambiguity. The denial of confirmation of the original award was affirmed, the ruling remanding in accordance with the district court's ruling was modified to remand without restriction, and the appeal from the denial of a motion to vacate the corrected award was dismissed as moot.
In so holding, the Court in Hyle stated:
We think the wording of the award, read in conjunction with the undisputed limitation announced by DAI as to the respondent against whom it was seeking damages and an injunction, creates an ambiguity as to whether the arbitrator intended to award damages and an injunction against Gruelich, Hyle, or possibly even all four respondents. See Colonial Penn, 943 F.2d at 334 ("An HN2 ambiguity in the award for which the court may remand to the arbitrators may be shown not only from the face of the award but from an extraneous but objectively ascertainable fact."). That ambiguity sufficed to justify the District Court's denial of Hyle's motion to confirm the original award and also provided an occasion for the Court to remand to have the ambiguity resolved. See Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987). Though the arbitrator has now indicated in his "corrected" award what he intended to order, he acted at a time when he might have lacked authority, and the District Court might have lacked authority to direct compliance with the arbitrator's expressed intention. Accordingly, a remand "for clarification in accordance with [the District Court's] ruling," though entirely understandable, risks exceeding the authority of the District Court. The more prudent course is to have the District Court remand to the AAA, without restriction, to permit the arbitrator to resolve the ambiguity as to the identity of the person or persons intended to be subject to the award's remedy.
Thus the Second Circuit in this older case was not satisfied to merely have the arbitrator make a correction and to confirm that correction, but held that the court should have remanded the case to the AAA in order to have the arbitrator resolve the ambiguity.
Arbitrator Permitted to Amend Award
In 2010, in T.Co Metals, LLC v Dempsey Pipe & Supply, Inc., a dispute over allegedly defective steel pipe, both petitioner seller and respondent buyer petitioned the U.S. District Court for the Southern District of New York to vacate, modify, and correct an amended arbitration award pursuant to the Federal Arbitration Act (FAA), 9 U.S.C.S. §§ 10-11. The district court rejected the amended award and approved an original award including a damages award to respondent. Petitioner appealed.
The arbitrator of the sales contract dispute had issued two awards — an original award finding that Buyer Dempsey owed Seller T.Co $338,039.72 for outstanding unpaid invoices while T.Co owed Dempsey $420,357 for the diminished value of the defective product, and an "amended" award finding that T.Co only owed Dempsey $340,587 for the product's diminished value. The arbitrator decreased the amount that T.Co had to pay Dempsey because of errors made in valuation, even though those errors were not "mere computational issue[s]" and "involve[d] the same appreciation of the evidence before the Arbitrator on the issue of value as was conducted pre-Award. The arbitrator found authority for this modification in the International Arbitration Rules of the American Arbitration Association ("ICDR"), under which the parties had agreed to arbitrate. The ICDR rules specifically allowed for changes to an award. In so noting, the court held:
[Though] ICDR Article 27(1) provides that '[a]wards ... shall be final and binding on the parties,' ... the ICDR Articles also expressly permit that, [w]ithin 30 days after the receipt of an award, any party ... may request the tribunal to ... correct any clerical, typographical or computation errors'; [i]f the tribunal considers such a request justified, after considering the contentions of the parties, it shall comply with such a request.
The bone of contention was that the arbitrator had issued a corrected award based upon his initial misapprehension of an exhibit. The applicable ICDR rule, Rule 33.1, (now 36.1) permitted only certain corrections of a computational nature. Based upon that limitation, the district judge held that the corrected award had to be vacated under FAA section 10(a)(4).
On appeal, the petitioner claimed that the district court misapplied the functus officio doctrine when it vacated the revisions in the arbitrator's amended award, and the Second Circuit agreed. The court agreed with the district court that the arbitrator reasonably interpreted New York law to permit respondent to recover the diminution in value of the pipe under N.Y. U.C.C. Law § 2-714(2), notwithstanding a provision barring consequential damages in the parties' contract. However, the court disagreed with the district court that the arbitrator exceeded his powers by revising the original award. The functus officio doctrine only applied absent an agreement by the parties to the contrary. The appellate court held that the parties had empowered the arbitrator to determine the scope of his reconsideration authority, and the arbitrator acted consistent with his interpretation of the arbitration rules which allowed him to correct errors.
The Second Circuit reversed the district court's decision to vacate the amended award; vacated the district court's ruling confirming the original award; and remanded with instructions that, upon application, the amended award should be confirmed. The Second Circuit found that the arbitrator was not functus officio when he issued the amended award, because the rules under which parties specifically agreed to arbitrate gave the arbitrator the ability to "correct any clerical, typographical or computation errors.” Though the change to the award may not have been "clerical" by typical functus officio common law standards, the arbitrator had interpreted the ICDR rule to allow for such changes, and the parties had also given the arbitrator the authority to interpret the ICDR rules.
The Second Circuit concluded that the district court erred in applying the functus officio doctrine to the arbitrator, as the arbitrator was acting on the parties' petitions for reconsideration, and he revised the award pursuant to his interpretation of the arbitral rules pursuant to which the parties had agreed the arbitration would be conducted. The court concluded that the arbitrator's interpretation of these rules was entitled to deference and that, applying that deference, the arbitrator did not exceed his powers by granting in part T.Co's request that certain errors be corrected in the award.
Similarly in Veliz v. Cintas Corp., a Ninth Circuit case, the parties’ agreements explicitly permitted the arbitrator to reconsider a prior decision. Accordingly, the Circuit Court held that the district court erred when it stated that under the functus officio doctrine, the arbitrator could not redetermine an issue which he had already decided. The matter was therefore remanded to the arbitrator for de novo consideration.
The problem with the ICDR rules, such as Article 36, like those of other institutional providers, is that nothing in the rule explicitly reinstates arbitral jurisdiction by a correction request. In the above cases, the courts gave deference to the arbitrator’s discretion and the parties’ agreements to correct an oversight error, notwithstanding the fact that it was not the type of clerical/typographical and computational error that was ordinarily permitted under the common law exception to functus officio. Institutional rules do not strictly support this type of ameliorative outcome.
The Dempsey Pipe rule was adopted by the Fifth Circuit in Communication Workers Versus Southwestern Bell Telephone Company. Also confronted with the limits of an arbitrator’s power to reconsider a previously issued decision, the court therein held:
We review the district court's confirmation of an arbitrator's award de novo, but our review of the arbitrator's award itself . . . is very deferential." YPF S.A. v. Apache Overseas, Inc., 924 F.3d 815, 819 (5th Cir. 2019) (internal quotation marks and citation omitted). This standard of review has been described as "extraordinarily narrow," Rain CII, 674 F.3d at 471-72 (citation omitted), and "severely limited," Manville Forest Prods. Corp. v. United Paperworkers Int'l Union, AFL-CIO, 831 F.2d 72, 74 (5th Cir. 1987)—one of the most deferential standards "known to the law," Cont'l Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 555 F.3d 399, 405 (5th Cir. 2009) (citation omitted). Where an arbitration award stems from a labor dispute, judicial review is "particularly constrained. Teamsters Local No. 5 v. Formosa Plastics Corp., 363 F.3d 368, 371 (5th Cir. 2004); see also United Paperworkers Int'l Union v. AFL-CIO v. Misco, 484 U.S. 27, 37, 108 S. Ct. 364; 98 L. Ed. 2d 286 (1987) (observing that the Labor-Management Relations Act "reflect[s] a decided preference for private settlement of labor disputes without the intervention of government").
Courts are not permitted "to reconsider the merits of an [arbitration] award." Misco, 484 U.S. at 36. Instead, we must affirm an arbitral award "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority." Id. at 38. Even if an arbitrator committed serious error, we may not reverse the arbitrator's judgment if the decision "draw[s] its essence from the contract." Id.; see also Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 572, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) (noting that "convincing a court of an arbitrator's error—even his grave error—is not enough" to justify vacatur). . . . This uniquely deferential standard of review compels us to affirm the district court and uphold the arbitrator's February award.
In essence, the court found that the arbitrator had grounded his modification within the AAA Labor Arbitration Rules that governed the parties’ agreement, and extended deference to his modification for that reason. Some authorities, such as the arbitration committee of the New York City Bar Association, contend that this type of situation, in which institutional rules are superimposed against FAA principles, creates unpredictability, causes excessive post–award litigation, and threatens the perceived integrity of arbitration.  It also requires the parties to invoke the judicial vacatur process under the FAA to resolve an incomplete or incorrect award.
Similarly, in United Bhd. of Carpenters & Joiners of Am. v Tappan Zee Constructors, LLC, a dispute arose regarding the assignment of labor for the construction project to replace the Tappan Zee Bridge, a bridge over the Hudson River connecting Westchester and Rockland Counties. Both the pier and column formwork were assigned to a local union, the Carpenters. However, this assignment of work was disputed by another local union, the Dockbuilders, to whom only the pile formwork was assigned. The Dockbuilders are an affiliate of the same umbrella labor organization as the Carpenters — Petitioner UBC — which represents the local unions on the Project.
The sole arbitrator, Pierson, issued a four-page award on May 4, 2014, in which he dismissed TZC's procedural argument and assigned all disputed work — both the pier and column formwork — to the Dockbuilders ("May 4th Award"). Pierson wrote: "In consonance with the proof and with considered judgment, this Arbitrator hereby renders, decides, determines an[d] issues the following: AWARD.” "Furthermore, the May 4th Award indicated that the Arbitrator Pierson had "fully considered" both Sections 8(a) and (b) of Article V of the Plan and "made a finding that the matter is resolved through Article V, Section 8(b)." The May 4th Award was forwarded to the Parties by the Plan Administrator on May 5, 2014, along with a letter in which the Administrator explained that "Arbitration [sic] Pierson has stated that he expects to provide his full Opinion soon. I will forward his Opinion to you when it is received."
On May 13, 2014, Arbitrator Pierson issued his twelve page "OPINION and AWARD" ("May 13th Award"). He wrote:
[A]n Arbitrator is vested with confined authority under provisions of the Plan and the controlling criteria of Article V, Section 8. The stated criteria does not conflict with the letter or spirit of Article 10, Section 3 of the present PLA. As recognized, the criteria track each other.
Likewise, as both the administrative procedures and contract language direct, once the parties proceed to a final and binding arbitration, the Arbitrator is required to render a short-form decision within five (5) days of the hearing and, thereafter, follow with a written decision, based on the evidence submitted at the hearing within thirty (30) days.
In his full opinion and award, Arbitrator Pierson asserted that both types of disputed formwork should be assigned to the Carpenters — and not the Dockbuilders as stated in the May 4th Award. He explained that the May 4th "decision was not fully considered at the time," and that his previous conclusion with regard to Article V, Section 8(b) of the Plan "was hasty, as further review of the evidentiary record revealed.” In considering the fact that there were two awards, the Court held that arbitration is first and foremost a creature of contract. See Am. Exp. Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309, 186 L. Ed. 2d 417 (2013) (the "text [of the FAA] reflects the overarching principle that arbitration is a matter of contract. And consistent with that text, courts must 'rigorously enforce' arbitration agreements according to their terms, including terms that "specify with whom [the party] choose to arbitrate their disputes," and "the rules under which that arbitration will be conducted.") (internal citations omitted).
"Consequently, parties may agree to enlarge the authority and jurisdiction of the arbitrator, giving him the ability to reconsider issues. T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., 592 F.3d 329, 342-43 (2d Cir. 2010). [Respondent] and the district court ignore an important caveat to the functus officio doctrine: that it only applies 'absent an agreement by the parties to the contrary' ... and parties are certainly free to empower their arbitrators to reconsider an award.") (internal citations omitted). The functus officio doctrine "is merely a default rule, operative if the parties fail to provide otherwise. There is no legal bar to authorizing arbitrators to reconsider their decisions, and some rules for arbitrators ... do authorize reconsideration."
The Court found that the May 4th Award was not final; that Arbitrator Pierson was not functus officio when he issued the May 13th Award; consequently, he did not exceed his authority by issuing the May 13th Award. Accordingly, UBC's petition to vacate the May 13th Award was denied.
Remand for a “Reasoned” Award
In a case involving a contract to supply steel components for the renovation of the Whitestone Expressway, the arbitrator issued a two-page itemization of the damages. The Southern District found that the arbitrator's two page "final award" offered no explanation whatsoever for his rulings on the party’s claims and the opposing party’s counterclaims. It noted that the arbitrator did not set forth the relevant facts, explain the nature of the claims, or offer any reason or rationale for his determinations as to liability and damages. Instead, the arbitrator merely listed various categories of monetary damages without any explanation as to how he calculated those figures or determined liability. In response to the party’s request that he vacate the award and issue a reasoned award, the arbitrator correctly identified the three commonly recognized award formats - i.e., standard award, reasoned award, and findings of fact and conclusions of law - but offered no authority for his assertion that his "final award" was "a 'reasoned award' under all applicable rules, statutes, and case law. The district court found this insufficient, holding:
Here, the parties' intentions with respect to the form of award are clear. The Arbitration Agreement stipulates that the AAA Arbitration Rules for Complex Construction Cases will govern the arbitration. Those rules require that the award be in the form of a "reasoned award." Accordingly, the arbitrator was required [*49] to issue an award that constitutes a "reasoned award." In issuing a line item award devoid of reasoning, the arbitrator did not comply with the parties' agreement and thereby exceeded the authority granted to him. Accordingly, the award cannot stand.
The district court found that functus officio did not apply, and, embracing the reasoning of the Sixth and Eleventh Circuits, it was empowered to remand, since it was remanding to the arbitrator, not to change the merits of the award, but to explain them:
While two district courts have concluded that remand is improper under such circumstances - citing the common law doctrine of functus officio - that view has been rejected by the circuit courts. See Green v. Ameritech Corp., 12 F. Supp. 2d 662, 666 (E.D. Mich. 1998), rev'd, 200 F.3d 967, 976-78 (6th Cir. 2000) (stating in dicta that the district court incorrectly determined that the functus officio doctrine would bar a remand requiring [*50] the arbitrator to explain his decision; "[w]hile a failure to fully explain an award does not leave . .. an interpretive gap, we believe that it would nevertheless authorize a remand based on [the] third exception to the functus officio doctrine. The purpose of this exception is to permit the arbitrator to complete an assigned task, and in this case the district court adjudged the arbitrator's task incompletely executed. Remanding to Arbitrator Googasian under these circumstances would not implicate any of the concerns underlying the functus officio doctrine, as he would simply be completing his duties by clarifying his reasoning, not reopening the merits of the case.")
New York’s Highest Court Considers Functus Officio in an Ad Hoc Proceeding
The New York State CPLR provides, as to modification of arbitration awards, as follows:
- 7509. Modification of award by arbitrator. On written application of a party to the arbitrators within twenty days after delivery of the award to the applicant, the arbitrators may modify the award upon the grounds stated in subdivision (c) of section 7511. Written notice of the application shall be given to other parties to the arbitration. Written objection to modification must be served on the arbitrators and other parties to the arbitration within ten days of receipt of the notice. The arbitrators shall dispose of any application made under this section in writing, signed and acknowledged by them, within thirty days after either written objection to modification has been served on them or the time for serving said objection has expired, whichever is earlier. The parties may in writing extend the time for such disposition either before or after its expiration.
CPLR §§ 7511 ( c) – (e) provide:
(c) Grounds for modifying. The court shall modify the award if:
- there was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award;
- the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
- the award is imperfect in a matter of form, not affecting the merits of the controversy.
(d) Rehearing. Upon vacating an award, the court may order a rehearing and determination of all or any of the issues either before the same arbitrator or before a new arbitrator appointed in accordance with this article. Time in any provision limiting the time for a hearing or award shall be measured from the date of such order or rehearing, whichever is appropriate, or a time may be specified by the court.
(e) Confirmation. Upon the granting of a motion to modify, the court shall confirm the award as modified; upon the denial of a motion to vacate or modify, it shall confirm the award.
Thus, CPLR 7511 only authorizes correction of computational errors, not reversal of substantive rulings:
A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice. Applying this standard, there is no basis to upset the final award.
In Am. Intl. Specialty Lines Ins. Co. v Allied Capital Corp., the issue was whether an arbitration panel exceeded its authority by reconsidering an initial determination—denominated a "Partial Final Award"—that addressed some, but not all, of the issues submitted for arbitration.
This appeal requires us to determine whether an arbitration panel exceeded its authority by reconsidering an initial determination—denominated a "Partial Final Award"—that addressed some, but not all, of the issues submitted for arbitration. Inasmuch as the record is devoid of any evidence that the parties to the arbitration mutually agreed to the issuance of a partial decision that would have the effect of a final award, we hold that the arbitration panel acted within the bounds of its broad authority by reconsidering the Partial Final Award.
The Appellate Division held that the arbitration panel exceeded its authority because it violated the common law doctrine of functus officio, precluding them from taking additional actions after issuing a final award.
The Court of Appeals declined to reach that issue, finding that:
Even assuming that parties to an arbitration may agree to the issuance of a partial determination that constitutes a final award, the parties here, as the arbitration panel below concluded, did not reach any such agreement. Although the insureds' counsel suggested a separate proceeding to determine the amount of Allied Capital's defense costs in the event the panel determined such costs were recoverable, AISLIC never consented to bifurcate the proceeding—remarking at one point that, in its view, "there [was] nothing left on [the defense costs] issue to talk about"—or agreed that any resulting partial decision would be treated as a final award. Notably, neither the parties nor the arbitrators ever discussed or otherwise demonstrated any mutual understanding regarding whether the proposed severance of the calculation of defense costs would result in a final partial award. This case is therefore distinguishable from Trade & Transport, in which the parties specifically agreed to bifurcate the arbitration for the very purpose of obtaining a "decision that was expressly intended to have immediate collateral effects in a judicial proceeding" (931 F2d at 195). Absent an express, mutual agreement between the parties to the issuance of a partial and final award, the functus officio doctrine would have no application in this case. Under these circumstances, we reject AISLIC's argument that the arbitration panel exceeded its authority by reconsidering the Partial Final Award.
Since the record was devoid of any evidence that the parties to the arbitration mutually agreed to the issuance of a partial decision that would have the effect of a final award, the arbitration panel acted within the bounds of its broad authority by reconsidering the Partial Final Award. Thus, the Court of Appeals, rather than clarifying the role of functus officio in New York arbitration law, instead determined that there had been no stipulation for the finality of a partial award, hence no final award had been made, since only awards that decide all submitted issues are final. Hence, the arbitrator was free to reconsider the nonfinal award.
Clarification of an Ambiguity in a Final Award
In Gen. Re life Corp. v Lincoln Natl. Life Ins. Co., General Re Life Insurance Corporation appealed from the order of the United States District Court for the District of Connecticut (Bolden, J.) denying its petition to confirm an arbitration award and granting the cross-petition of Lincoln National Life Insurance Company to affirm the award issued after the arbitral panel clarified the original award. General Re argued that the doctrine of functus officio—which limited the power of arbitrators to alter an award once the arbitrators have decided the issue--barred the arbitral panel here from clarifying how the parties were to calculate the amount of the award.
The Court stated:
Today we recognize an exception to functus officio: where an arbitration award is ambiguous, we hold that the arbitrators retain their authority to clarify that award. We agree with the district court that the arbitrators correctly exercised their authority in handing down the clarification at issue here.
The Second Circuit set forth a three-factor test for determining when an award can be revisited:
An arbitrator does not become functus officio when it issues a clarification of an ambiguous final award as long as three conditions are satisfied: (1) the final award is ambiguous; (2) the clarification merely clarifies the award rather than substantively modifying it; and (3) the clarification comports with the parties' intent as set forth in the agreement that gave rise to arbitration. This narrowly drawn rule ensures that in those circumstances where an arbitral body issues an ambiguous award and must issue a clarification, it will do so in keeping with the twin objectives of arbitration: "settling disputes efficiently and avoiding long and expensive litigation.”
The Second Circuit Court of Appeals joined five other federal judicial circuits in holding that the doctrine of functus officio includes an exception that permits an arbitration panel to clarify an ambiguity in its final award, holding:
The arbitrator in this case was empowered by both parties to consider requests for revisions to be made in the arbitration award by virtue of the fact that the parties had agreed the arbitration would be conducted pursuant to the ICDR Articles. Here, the arbitrator interpreted ICDR Article 30 (1) to permit him to make some corrections to the Original Award and to bar him from making others.
In Chicago Ins. Co. v Gen. Reins. Corp., General Reinsurance Corporation and SCOR Reinsurance Company reinsured Chicago under a Second Layer Special Casualty Excess Agreement of Reinsurance ("Agreement") from January 1, 1981, to December 31, 1982. As part of the Agreement, the reinsurers agreed to cover a certain amount in excess of Chicago's $1 million per occurrence retention. The Agreement defined an "occurrence" as "an occurrence or accident or a series of occurrences or accidents arising out of or caused by one event. The Agreement provided that disputes between the parties shall be arbitrated before three arbitrators. The Agreement also specified the process by which those arbitrators would be selected: one arbitrator would be chosen by Chicago, the other by the reinsurers, and an umpire would be chosen by the two arbitrators. Chicago, along with its affiliate, Fireman's Fund Insurance, insured Thorpe, which was an asbestos distributor and installer. After Thorpe filed for bankruptcy, Chicago and Fireman's Fund reached an agreement with Thorpe to settle all liability under the insurance policies. Chicago billed the reinsurers for a portion of its share of the settlement payment. When the reinsurers disputed the billings presented, the matter was submitted to arbitration.
The 2017 Arbitration panel consisted of Chicago's appointed arbitrator, the reinsurers' appointed arbitrator, and an umpire appointed by both party arbitrators. One of the central issues in the 2017 Arbitration was whether Chicago could bill its losses on the basis that each site where Thorpe operated constituted an "occurrence" under the Reinsurance Agreement. The panel rejected that billing scheme and issued a Final Award for the Reinsurers. The May 17, 2017, Final Award also stated that the 2017 arbitration panel "retain[ed] jurisdiction to resolve any dispute arising out of [the] Final Award.
On September 25, 2018, Chicago submitted a new billing to the Reinsurers. As part of that billing, Chicago stated that the "final award . . . set forth protocols for Chicago's submission of claims to [the reinsurers]," and that the "loss allocation was prepared in accordance with the Award's protocols." The Reinsurers rejected this new billing and alerted the 2017 Arbitration panel. In response, the umpire wrote to "confirm that [the panel] retained jurisdiction to resolve any dispute arising out of the Final Award," and stated that the current dispute over the new billing "clearly" arose out of that Final Award. He noted that the decision was made by a majority of the panel — that is, without the participation of the Chicago-appointed arbitrator. The Chicago-appointed arbitrator wrote separately to note that he would "not [be] participating in this matter because [he] see[s] no jurisdictional basis to do so."
Chicago commenced a separate arbitration to resolve the dispute. The reinsurers declined to proceed with the new arbitration, claiming that the 2017 Arbitration panel retained jurisdiction. On November 9, 2018, Chicago filed a petition to compel the reinsurers to arbitrate in front of a new panel and stay the arbitration in front of the 2017 arbitration panel. In response, the Reinsurers filed a cross-petition to stay the new arbitration and for declaratory relief indicating that the 2017 arbitration panel has jurisdiction to resolve the dispute.
Can a panel, despite the functus officio doctrine, retain jurisdiction to resolve any dispute arising out of a Final Award," and determine that a dispute arises out of that Final Award? The Southern District answered this question in the affirmative in Chicago Ins. Co. v Gen. Reins. Corp. Based upon Chicago's claim that the new billing flowed from the Final Award, the Court found that a majority of the panel correctly determined that the current dispute "clearly" fell within their reserved jurisdiction. It held that “[g]iven Chicago's own repeated statements that the final bill arose from the "protocols" set forth coupled with the panel majority's assertion of jurisdiction, it is clear that the current dispute "arises out" of the Final Award.” Accordingly, the Court concluded that the 2017 Arbitration panel retains jurisdiction to adjudicate whether the new bill comports with its Final Award.”
Smarter Tools Inc. v Chongqing Senci Import & Export Trade Co., concerned a dispute over STI's purchase of gas-powered generators from SENCI. From 2011 to 2013, STI purchased thousands of the AP2000i generators to resell in California and elsewhere in the United States. STI was forced to halt sales in California because the generators did not comply with standards set by the California Air Resources Board ("CARB").
The arbitrator issued a final award in favor of SENCI in the amount of $2,402,680.43. In an Opinion & Order dated March 26, 2019, the Court denied the parties' cross-petitions to confirm or vacate the arbitration award and remanded to the arbitrator to issue a reasoned award. The Court held that the arbitrator did not exceed his authority or manifestly disregard the law, but that the brief award—which did not even mention STI's argument that SENCI had promised to deliver CARB-compliant generators—failed to provide a "reasoned award" as the parties had contracted for in their arbitration agreement.
The arbitrator then issued a final amended award, which granted substantially the same relief as the initial final award. Unlike the initial final award, the final amended award provided a rationale for rejecting STI's counterclaims—namely, that the evidence did not show that STI had ordered EPA-and CARB-certified generators. The court held:
Finally, STI contends that the arbitrator exceeded his authority because he issued the award in a manner not prescribed by the parties' arbitration agreement. STI advances two arguments in support of this proposition. Both lack merit.
First, STI cites General Re Life Insurance Corp. v. Lincoln National Life Insurance Co., 909 F.3d 544 (2d Cir. 2018), to argue that pursuant to the functus officio doctrine, the arbitrator lacked the authority to issue an amended award following remand from this Court. But that case stands for the exact opposite proposition. In General Re, the Second Circuit "join[ed] the Third, Fifth, Sixth, Seventh, and Ninth Circuits in recognizing an exception to functus officio where an arbitral award fails to address a contingency that later arises or when the award is susceptible to more than one interpretation." Id. at 548 (internal quotation marks and citation omitted). As an example of this exception, the Second Circuit cited the "well-settled rule" that a district court should remand an ambiguous award to the arbitrator for clarification and that an arbitrator does not act functus officio on remand from a district court.
Reconsideration of Final Awards
“Should the rules of ADR providers include a limited provision for the parties to file a motion for reconsideration after issuance of the Final Award? If so, on what grounds would such a motion be entertained? For example, a need to correct a clear error of fact (i.e., the arbitrator/panel having (inadvertently) misread/misconstrued a piece of evidence), an intervening change in controlling law, or the emergence of new evidence not previously available?”
This was a question asked by the Resolution Roundtable, the official Blog of the Dispute Resolution Section of the New York State Bar Association. Most of the responding neutrals were against reconsideration motions on the grounds that this would mirror litigation, and defeat the arbitral asset of finality. They were almost uniformly in favor of applications requesting arbitrator corrections that center around arbitrator correction of technical defects which do not affect the merits of the award, rather than blatantly hubristic applications that proclaim “I lost. Please reconsider. I want to be the winner.”
While the detractors of reconsideration motions have valid points, the reality is that once an award is corrected, it will likely result in a vacatur motion by the losing party in federal court pursuant to the FAA. If the award is not corrected, it will also likely be the subject of a vacatur motion on the ground that the arbitrator acted in manifest disregard of the law that governs the dispute. Either way, more litigation will result. Case resolution will be delayed. More money will be spent for a non-final outcome.
As stated earlier, the New York City Bar Association’s Arbitration Committee has proposed a solution to the shortcomings of the application of the traditional functus officio doctrine in court decisions and institutional provider rules. The solution essentially proposes to provide a reconsideration device whereby the arbitration panel may make substantive corrections to its awards within a prescribed time period, and under given circumstances.
The committee's proposal would be to add a consensual opt-in rule at the outset of the proceeding that would circumvent functus officio by permitting reconsideration of the merits of the award. It would permit a motion for rectification to be submitted within 30 days of the award. Amendments to each of the provider rules is contemplated in order to accommodate the rectification procedure. This proposed procedure would expand the limitations of the functus officio doctrine, but the obvious problem is that, while permitting the arbitrators to make substantive corrections, it still does not guarantee that a set-aside application would not be brought in court in response to a confirmation application. This would result in the same precarious, expensive and time-consuming outcome that a rectification request was intended to foreclose.
FINRA’s Reconsideration Rules
In 2008, FINRA enacted, and the SEC approved, Customer Rule 12905 and Industry Rule 13905. The purpose of these was to curtail submissions in cases that were deemed closed (some of which were being submitted long after the closure), reduce the parties’ costs in responding to them, reduce FINRA costs in administering them, and thereby enhance the notion of finality in its arbitrations. FINRA considers a case closed on the date it serves an award or notifies the parties that a case is closed.
Customer Code Rule 12905 provides:
Submissions After a Case Has Closed
- Parties may not submit documents to arbitrator(s) in cases that have been closed except under the following limited circumstances:
(1) as ordered by a court;
(2) at the request of any party within 10 days of service of an award or notice that a matter has been closed, for typographical or computational errors, or mistakes in the description of any person or property referred to in the award; or
(3) if all parties agree and submit documents within 10 days of (1) service of an award or (2) notice that a matter has been closed.
(b) Parties must make requests under this rule in writing to the Director and must include the basis relied on under this rule for the request. The Director will forward documents submitted pursuant to paragraph (a)(1), along with any responses from other parties, to the arbitrators. The Director will determine if submissions made pursuant to paragraphs (a)(2) and (a)(3) comply with the grounds enumerated in the rule. If the Director determines that the request complies with paragraphs (a)(2) and (a)(3), the Director will forward the documents, along with any responses from other parties, to the arbitrators. The arbitrators may decline to consider requests that the Director forwards to them under paragraphs (a)(2) and (a)(3).
(c) Unless the arbitrators rule within 10 days after the Director forwards the documents to the arbitrators pursuant to a request made under paragraphs (a)(2) and (a)(3), the request shall be deemed considered and denied.
(d) Requests under this rule do not extend the time period for payment of any award pursuant to Rule 12904.
The FINRA Industry Rules have comparable provisions for revisiting awards.
One federal court held, in Kulchinsky v Ameriprise Fin., that it is not manifest disregard of the law for FINRA and its arbitrators to decline to reopen a case in order to correct an award of attorneys’ fees:
In their letter requesting resubmission of the matter to the panel, the Kulchinskys relied on Fla. Stat. Ann. § 682.10 et seq. for the proposition that the matter could be resubmitted to the panel. . . . The language of section 682.10 is permissive. It does not require the panel to modify or correct an award. FINRA has promulgated its own regulations with respect to when a panel will reconsider its award … The Kulchinskys' letter seeking clarification did not implicate any of the three limited grounds for reconsideration. I find accordingly that FINRA's decision not to resubmit [*42] the matter to the panel was not in manifest disregard of the law.
The FINRA rules thus permit any party to request, within 10 days of service of an award or notice that a matter has been closed, corrections of typographical or computational errors, or mistakes in the description of any person or property. However, for more substantive requests, the FINRA rules require either court intervention or agreement of all parties along with timely written submission within 10 days of documentation in order to permit consideration by the Director of the request for reconsideration, which may ultimately be rejected by the arbitrators. However, it is noted that the submissions may, under a plain reading of the rules, request a substantive or merit-based reconsideration, so long as it is timely and there is consensus among the parties, the Director agrees, and the arbitrators also agree to entertain it. This is a bit more expansive, at least in theory, than the rules of other institutional providers.
ICSID Arbitration Rules Permit Interpretation, Revision and Annulment
The rules of the International Centre for Settlement of Investment Disputes (ICSID) provide, in Rules 50 through 52 for interpretation, revision and annulment of awards either by the tribunal making them, or a new one especially constituted for this purpose. The Rules provide, in pertinent part:
Article 50 - Interpretation, Revision and Annulment of the Award
(1) If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary-General.
(2) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter. The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision.
(1) Either party may request revision of the award by an application in writing addressed to the Secretary-General on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant's ignorance of that fact was not due to negligence.
(2) The application shall be made within 90 days after the discovery of such fact and in any event within three years after the date on which the award was rendered.
(3) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter.
(4) The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Tribunal rules on such request.
(1) Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds:
(a) that the Tribunal was not properly constituted;
(b) that the Tribunal has manifestly exceeded its powers;
(c) that there was corruption on the part of a member of
(d) that there has been a serious departure from a fundamental rule of procedure; or
(e) that the award has failed to state the reasons on which it is based. . .
These rules are much more expansive than those of other institutional providers, providing an internal mechanism for the correction of errors, without resort to court proceedings. Revision of awards is triggered by “discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant's ignorance of that fact was not due to negligence.” This standard is reminiscent of the standard for a “motion to renew” under the CPLR, Section 2221 (e) (2), which requires that an application “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion.”
As Professor Born noted,”[h]uman fallibility guarantees that virtually all arbitral awards will have mistakes, omissions, or ambiguities.… In some cases, however, errors can concern very fundamental points that lie at the heart of the tribunals['] reasoning or award.” The common law concept of functus officio has evolved in order to permit, under certain very limited judicially-determined circumstances, both types of errors to be corrected by the tribunal. The rules of institutional providers generally permit only the former category of mistakes, miscalculations, and omissions. As a result, arbitrators are faced with the unenviable choice of not correcting their awards, thereby risking their reputation, and future assignments, or making corrections, and virtually guaranteeing a rocky path to enforcement.
Clearly recognizing the inequity of this situation, federal courts in the Second Circuit have invoked the concepts of deference and party agreement to arbitral tribunals in order to permit errors, even those of a more substantive nature, to be ameliorated. One bar association committee has proposed “rectification” or “reconsideration” rules be added to those of institutional providers, to permit the parties to opt-in to a process that they believe provides greater finality and respect for the arbitral process. FINRA provides for limited expedient review under certain conditions. ICSID has an internal process that permits interpretation, revision and annulment of awards under an internal procedure.
In any event, it is clear that the concept of functus officio, which was originally intended to forestall arbitrator influence and other abusive practices in arbitrations, also brings with it the handicap of restricting self-correction by arbitration panels.
*Nelson Timken is an LLM student in International Dispute Resolution at Fordham School of Law. He worked as a court attorney for 27 years, and is on the AAA Roster of Mediators, the AAA Panel of Consumer Arbitrators and the CPR Panel of Neutrals. Mr. Timken is also Vice-Chair of the New York County Lawyers Association ADR Committee, and is a member of the Chartered Institute of Arbitrators, and the New York State Bar Association Dispute Resolution Section.
 See Erwin B. Ellmann, Functus officio under the Code of Professional Responsibility: The Ethics of Staying Wrong, Improving Arbitral and Advocacy Skills, 45 Proc. Nat. Acad. Arb. 190, 190-191 (1993) (citing 3 William Blackstone, Commentaries 409-411 ).
 See 2 Domke on Com. Arb. § 26:1.
 LLT Int'l Inc. v. MCI Telecomms. Corp., 69 F. Supp. 2d 510, 515 (S.D.N.Y. 1999) (internal quotation marks omitted).
 Lovelace v Showroom Auto, LLC, No 16 Civ 4978 (ERK) (CLP), 2019 U.S. Dist. LEXIS 106310, 2019 WL 3254949, at *7 (EDNY. June 24, 2019).
 2020 US Dist LEXIS 72600 at *25 [SDNY Apr. 24, 2020]
 Born, International Arbitration, Cases and Materials, Second Edition, p. 1125 
 592 F.3d at 344-45.
 AAA Commercial Arbitration Rules and Mediation Procedures Commercial Rules 1 - Including Procedures for Large, Complex Commercial Disputes, Rules Amended and Effective October 1, 2013, located at http://adr.org/commercial
 UNCITRAL Arbitration Rules, (as revised in 2010), located at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/arb-rules-revised-2010-e.pdf?utm_source=icdr-website&utm_medium=rules-page&utm_campaign=rules-uncitral
 Report, The Functus Officio Problem in Modern Arbitration and a Proposed Solution, Committee on Arbitration, Subcommittee on Functus Officio Doctrine, New York City Bar Association, April, 2021 available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/functus-officio-problem-in-arbitration-and-a-proposed-solution.
 See Report, supra at p. 27.
 198 F3d 368, 369 [2d Cir 1999].
 Hyle v Doctor's Assoc., 198 F3d 368, 370 [2d Cir 1999])
 Id. at 371.
 592 F3d 329, 333 [2d Cir 2010]
 Id. at 335, 337.
 Id. at 337.
 ICDR Article 30(1)-30(2), now 36(1)-36(2).
 Hyle v Doctor's Assoc., supra at 370.
 Id. at 347.
 Id. at 344-346. The amended rule is now rule 36, but reads the same.
 273 Fed. Appx. 608; 2008 US App. LEXIS 7845 [9th Cir. 2008]
 953 F.3d 822 [5th Cir. 2020].
 Id. at 826.
 Id. at 830.
 Report, supra at pp. 18.
 United Bhd. of Carpenters & Joiners of Am. v Tappan Zee Constructors, LLC, 2015 US Dist LEXIS 178206, at *27-29 [SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)]
 Id. at *20-23 [SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)].
 Id. at *2 [SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)]
 See id.
 ([SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)])
 Id. at *6-7.
 See id. at 9.
 See id. at 14.
 Id. at *9-11 [SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)].
 Id. quoting Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union, Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 848 [7th Cir.1995]; see also Hotel Greystone Corp. v. New York Hotel & Motel Trades Council, AFL-CIO, 902 F. Supp. 482, 485 [S.D.N.Y. 1995].
 United Bhd. of Carpenters & Joiners, supra at *35 [SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)]; see Id. at *20-23 [SDNY Mar. 25, 2015, No. 1:14-cv-03688 (ALC)].
 Tully Constr. Co. v Canam Steel Corp., 2015 US Dist LEXIS 25690, at *37-38 [SDNY Mar. 2, 2015]
 Tully Constr. Co. v Canam Steel Corp., 2015 US Dist LEXIS 25690, at *48-49 [SDNY Mar. 2, 2015].
 Tully Constr. Co. v Canam Steel Corp., 2015 US Dist LEXIS 25690, at *49-50 [SDNY Mar. 2, 2015].
 Federal Arbitration Act, 9 USC Sections 1-16 (1925).
 35 NY3d 64, 67 
 Am. Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64, 67 
 167 AD3d at 148-149.
 Am. Intl. Specialty Lines Ins, supra. at 71.
 Id. at 73.
 909 F3d 544, 546 [2d Cir 2018]
 Id. at 546.
 Id. at 549
 Id. at 343.
 2019 US Dist LEXIS 182764, at *1-5 [SDNY Oct. 21, 2019, No. 18-CV-10450 (JPO)]
 Id. at 5.
 2019 US Dist LEXIS 182764, at *1 [SDNY Oct. 21, 2019, No. 18-CV-10450 (JPO)]
 Id. at 5.
 Smarter Tools Inc. v Chongqing Senci Import & Export Trade Co., 2021 US Dist LEXIS 36611, at *2-3 [SDNY Feb. 26, 2021, No. 18-cv-2714 (AJN)].
 2021 US Dist LEXIS 36611, at *1-2 [SDNY Feb. 26, 2021, No. 18-cv-2714 (AJN)].
 U.S. Dist. LEXIS 50633, 2019 WL 1349527, at *1 (S.D.N.Y. Mar. 26, 2019).
 2011 US Dist LEXIS 75917, at *39-42 [ED Pa July 13, 2011, No. 11-0319])
 Id. at *5
 Id. at *3-5.
 Id. at 549.
 Resolution Roundtable Blog, February 24, 2018, available at http://nysbar.com/blogs/ResolutionRoundtable/2018/04/motion-for.html, Resolution Roundtable, “Motion for Reconsideration After Final Award - What are your thoughts?” This blog reports on current developments in these areas, provide practice tips and techniques, highlight ways in which experienced practitioners have dealt with unusual or particularly difficult issues, report on section events and other matters of interest to all the participants in party-selected solutions. Jeffrey T. Zaino, chair of the Dispute Resolution Section Blog Committee and Blog Administrator, coordinates the blog.
 Id., post by Professor George Friedman, February 25, 2018: 9:37 AM. A great professor, but I don’t necessarily agree with him, because arbitrators will invariably want to correct substantive mistakes in their awards, and they presently have no vehicle to do so.
 Report, supra at Exhibit “B”.
 Carey, David L., The Neutral Corner, Vol I, p. 11 [ FINRA, 2009]
 2011 US Dist LEXIS 75917, at *39-42 [ED Pa July 13, 2011, No. 11-0319])
 Id. at 42.
 ICSID Arbitration Rules 50 and 51 available at http://icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/parta-chap04.htm.
 Blackaby and Partasides, Redfern and Hunter on International Arbitration, p. 566 [6th ed. 2015].
 CPLR section 2221 (e ) (2), available at https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-2221.html .
 Born, supra at p. 1125.