Another Judicial Misstep in Correcting an Arbitral Award* – Vol. 12 No. 3-4

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AuthorHans Smit**

Published: October 2003

Court Decisions
Contractual Expansion or Limitation of Judicial Review
Review on the Merits
Enforcement of Arbitral Awards

Description: Arbitral mistakes continue to create problems. The case here discussed, Sawtelle v. Waddell & Reed, Inc., provides a striking example. When a judge makes a mistake, if caught in time, it can generally be corrected by the judge him or herself. And if the mistake is discovered after judgment, it can, if timely addressed, also be corrected by the judge that made it or, on review, by an appellate court.

In arbitration, correcting mistakes is not that simple. The wholesale application of the doctrine of functus officio, coupled with institutional rules that permit correction by the arbitrator only of computational, clerical and other similar errors, create difficulties when the error is not of the obvious kind contemplated by the institutional rules. In such a case, the institutional rules and the functus officio doctrine do not permit the arbitrator to make the correction and the courts must come to the rescue.

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*Arbitral & Judicial Decisions
**Stanley H. Fuld Professor of Law and Director, Center for International Arbitration and Litigation Law, Columbia University. The author gratefully acknowledges the assistance of Matthew John Everitt, Class of 2003, Columbia University School of Law, in the compilation of authoritative supporting materials.