by Andrew Flake
A neighbor of mine, who loves to cook, was excited to show me what appeared to be a small handheld blowtorch. As I took a step backward for fire safety purposes, he explained that no, this tool was essential for melting and caramelizing sugar. Did I not want to prepare the perfect flan? I did not. Is a pudding? Is it a custard? What is it? But my friend’s demonstration did give me a good idea.
Enter the arbitration rule of “functus officio.” In general, functus officio is the principle that, once the arbitration tribunal issues its merits award, the tribunal’s work has concluded; there is no merits redetermination. “Functus officio” — of no further legal effect. The arbitrator’s good offices have concluded.
The rule also has traditional exceptions, for when the award contains an error (computational or typographical, for example) apparent on the face of the award; where an issue was presented but not adjudicated, or to clarify an ambiguity. Of course, given that arbitration rests on party agreement, the parties could also consent to modification of an award.
Mention functus officio to most arbitrators, and you’ll get a knowing nod. It’s a good shorthand for when the neutral’s role ends. But look closer, and you’ll see that, like a flan, functus officio — how it applies, whether it is needed — varies from case to case.
The Eleventh Circuit Court of Appeals has defined it as “a common law rule (meaning “task performed”) [providing] that, while an arbitrator may correct clerical, typographical, or computational errors in a final award, he has no power to revisit the merits of the award after it has issued.” Yet, the Eleventh Circuit has not needed to apply the rule, leaving open its “continuing viability” or not; in the case before it, the arbitration rules at issue — AAA’s Labor Arbitration Rules — incorporated the same concept of finality.
Whether the Eleventh Circuit adds functus officio to the post-award “menu” is unclear. It may yet have place — a situation in which an arbitration tribunal retains jurisdiction and/or issues relief or an award after it has already discharged its duties, and where the rules in place for that particular arbitration do not address that issue.
Generally, though, some form of the functus officio doctrine is reflected in major arbitral rule sets.
- In a AAA Commercial Arbitration, the principle of functus officio is explicitly incorporated into the rules. AAA Comm. R. 52 (“Within 20 calendar days after the transmittal of any award, any party, upon notice to the other parties, may request that the arbitrator, through the AAA, interpret the award or correct any clerical, typographical, or computational errors in the award. The arbitrator is not empowered to re-determine the merits of any claim already decided.’)
- Compare CPR Administered Arbitration Rules 15.6 (“Within 20 days after receipt of the award, either party, with notice to the other party and CPR, may request the Tribunal to clarify the award; to correct any clerical, typographical or computation errors, or any errors of a similar nature in the award; or to make an additional award as to claims or counterclaims presented in the arbitration but not determined in the award.”)
- Or JAMS Comp. Arb. R. 24 (j) (“Within seven (7) calendar days after service of a Partial Final Award or Final Award by JAMS, any Party may serve upon the other Parties and file with JAMS a request that the Arbitrator correct any computational, typographical or other similar error in an Award (including the reallocation of fees pursuant to Rule 31(c) or on account of the effect of an offer to allow judgment), or the Arbitrator may sua sponte propose to correct such errors in an Award.”);
In Georgia, I located only two appellate opinions in which functus officio is even mentioned. Both of them were cases in which one of the parties contended the arbitrator had violated the rule by issuing more than one final award. And in both cases, Wells v. Wells-Wilson in 2021 and very recently, in July of this year, Weathers, II v. Weathers, the Court of Appeals did not need to officially recognize or adopt functus officio, instead resolving the appeal on other grounds, namely, that there was no final award.
Here again, given the inclusion of the functus officio doctrine in many sets of arbitration rules, it may not be necessary for one of Georgia’s appellate courts to formally adopt it. Additionally, the Georgia Arbitration Act, which sets out a process for correction of an award in the absence of otherwise applicable party agreement or arbitration rules, implicitly recognizes the functus officio principle, listing only specific, non-merits reasons an arbitrator may change an issued award. See O.C.G.A. Section 9-9-11.
Whether or not functus officio applies as a common law doctrine, or is reflected in the administering organization’s rules for modification of an award, the principle remains a fundamental one: the final award marks the conclusion of the case, with the arbitrator’s ability to modify it, constrained.
And in case you are wondering, I’m not the only one with questions about flan; even Wikipedia can’t quite fit flan into a category. For simplicity, I think I’ll just have the ice cream.
[The cases referenced are IBEW, Local Union 824 v. Verizon Fla., LLC, 803 F.3d 1241, 1245, 25 Fla. L. Weekly Fed. C 1667 (11th Cir. 2015), Wells v. Wells-Wilson, 360 Ga. App. 646, 657, 860 S.E.2d 185, 196 (2021) andWeathers, II v. Weathers, No. A24A0608, 2024 Ga. App. LEXIS 318, at *1 n.2 (Ct. App. July 22, 2024.]