Author: James M. Gaitis*
Published: May 2005
Contractual Expansion or Limitation of Judicial Review
Just as is true with the remainder of humankind, it would seem obvious that arbitrators are sometimes fallible and sometimes make mistakes. Commentators and the courts both nonetheless prefer to remind their readerships of that fact with varying degrees of emphasis. The fact of this fallibility is established in numerous court decisions finding or noting the occurrence of arbitral error, and essentially is acknowledged in the various institutional arbitration procedures that allow an arbitral tribunal, upon a timely request by a party, to correct errors in an arbitral award that are clerical, mathematical or computational in nature. Yet those same rules, with one limited exception, fail to acknowledge that other unintentional errors that concern objective matters, but which cannot be described as merely clerical, mathematical or computational, are bound to occur from time to time; just as arbitrators occasionally inject “ministerial” errors into their awards, arbitrators are bound, periodically, to commit unintentional, substantive errors relating to the correct operation and application of clearly established law, or the nature of objective evidence in the record. Thus, and while the various institutions that promulgate rules governing arbitrations in both international and domestic commercial arbitrations have engaged in meaningful and deliberate efforts to revise those rules to accommodate evolving perspectives and concerns relating to commercial arbitration, none of the most widely utilized rules have yet to be amended to provide for a formal procedure that would allow a party to request an arbitral tribunal to correct an unintended error in the actual “reasoning” of a reasoned arbitration award even when it is clear that the tribunal erroneously interpreted objective evidence or clearly established law. The predictable result is that in an unknown number of instances the final arbitration award provides for a result that was not knowingly intended by the tribunal, and which the tribunal presumably would have corrected had a procedural avenue been available to the aggrieved party. This deficiency in the arbitraiton process has prompted prominent commentators and jurists to comment generally on the adverse consequences that flow from the lack of an arbitration procedure that would permit arbitral tribunals to correct substantive errors in their awards.
*Tucson, Arizona. BA, University of Notre Dame; JD, University of Iowa; Fellow, College of Commercial Arbitrators; Fellow and Chartered Arbitrator, Chartered Institute of Chartered Arbitrators. The author is a professional arbitrator who serves primarily in complex oil & gas and commercial arbitrations. He is a member of the CPR Institute for Dispute Resolution’s Oil & Gas Panel, the American Arbitration Association’s National Energy Panel and National Roster of Neutrals, and the National Arbitration Forum’s Panel of Arbitrators.