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Motion for Reconsideration After Final Award - What are your thoughts?

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?

Please provide your thoughts/comments below.

Comments (12)

Reconsideration: no. Correction, completion, and clarification: yes

Institutional arbitration rules generally give arbitrators authority to consider timely requests by a party to correct an award (see, for example, AAA Commercial Arbitration Rule 50). Under the AAA Rules, the arbitrators are not permitted to re-determine the merits of the claim. CPR, however, allows arbitrators to make an additional award as to claims or counterclaims presented in the arbitration but not determined in the award (CPR Administered Rule 15.6).

Despite the limitations in the rules, most jurisdictions allow arbitrators broader authority to clarify or modify the award on the request of a party. Parties should examine the relevant jurisdiction's arbitration laws to determine whether this is permitted, but generally:

*Arbitrators can correct a mistake that is apparent on the face of the award.

* Where the award does not adjudicate an issue that has been submitted, then regarding that issue, the arbitrators have not exhausted their function and it remains open to them for subsequent determination.

* Where the award, although seemingly complete, leaves doubt whether the submission has been fully executed, an ambiguity arises that arbitrators are entitled to clarify.

(See Play Star, S.A. De C.V. v. Haschel Exp. Corp., 2003 WL 1961625, at *3, n. 5 (S.D.N.Y. Apr. 28, 2003) (quoting Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327, 332 (3d Cir. 1991)).)

Hon William G. Bassler:

This is just one more step towards the judicialization of arbitration.
The chances of three arbitrators misreading or misconstruing a piece of evidence are quite low.
The liklihood of an intervening change in controlling law even lower and the emergence of new evidence not previously available almost non existent.
Providing this procedural mechanism would add just one more unnecessary expense. When will it end ?
Judge Bassler

Steven Certilman:

A party can seek the vacation of an award “(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.” 9 USC 10. Short of that, the higher values are cost effectiveness and expeditious resolution. I say no.

I favor the existing law in some states and some ADR provider rules that permit, in a very short window, Arbitrator correction of obvious technical defects "not affecting the merits of the award." I'm dead set against permitting reconsideration motions in the form of "I lost. Please reconsider. I want to be the winner."

One of arbitration' hallmarks is finality. There would be no end to the process by allowing these motions.

Talk about opening Pandora's box! It seems to me that if there is a provision for reopening a case, even on narrow grounds, that clever lawyers will try to expand those grounds when the case doesn't come out the way they like. And then there is the matter of who adjudicates the challenge. The time tested rule of 'when it's over, it's over' seems like the best way to me. It should be the responsibility of the parties' attorneys during the hearing to make sure that the arbitrator(s) fully understand the facts so that no errors will creep in during their pre-award study.
If there are incidental errors in grammar or English in the award, then the provider's administrators should catch them before issuance.

Paul Marrow:

The rules of the AAA, JAMS and CPR all provide for an appeal if the parties have agreed. That seems to me to be more than enough to address concerns about the viability of an award.These rules allow the parties to make the decision. And that is the way it should be in an arbitration.

Niki Rowe:

Within a specified timeline. And, under the specific circumstances(technical defects). It should be reviewed by a neutral higher authority.

A simple example is Lemon Law in New York. The Arbitrator's decision is final. However, under very specific issues a review by the Attny. General can be requested.

In my opinion, people should not be giving up their rights especially when arbitration is mandated.)

Additional Comment. Yes, to "clarification" as well. Regrettably, I have seen an award in which what the decision is was not clear to either party. I do not believe the parties should be required to pay for clarification. The arbitrators should write and issue clear decisions, so a request for clarification means the arbitrators didn't finish the job effectively.

William Pastor:

I think the existing provisions strike the right balance. They provide finality, no appeal, and a limited scope for technical corrections due to math errors, etc.

That said, others have mentioned that both parties may agree beforehand that there is a right of appeal for the case at hand. Although I have never seen this option used by parties, it addresses a concern over incorrect outcomes in a "bet the business" type case. However, as has also been mentioned, three skilled arbitrators working together will rarely make a mistake.

NO. As arbitration increasingly becomes a clone of litigation it veers away from the motto of "Speed, Economy, Justice." In return for a prompt decision by arbitral experts, the process is meant to offer finality with the risk that even an expert arbitrator may make the occassional mistake. In court, most reconsideration requests are driven by hubris; not the search for justice. We can anticipate the same will be true if reconsideration motions are imported into arbitration. The result would be increased cost and wasted time, especially considering that most judicial motions to reconsider are denied.

Jeff Miller:

The problem will be when the arbitrator grants the motion & changes the substance of the decision. Will the newly aggrieved party be able to then move too?

Will the rules permit the motion on papers [only] or oral argument [too]? Who should shoulder the cost of this potential appearance?

Those pesky details aside, perhaps we adopt a rule similar to NYCPVB that requires the 'appealing' party to pay the fine before appealing. In this context, the party seeking to reconsider should be compelled to escrow the judgment in order to seek reargument.

This would act to (i) dissuade many such motions and (ii) benefit the adverse party.

Stanley Sklar:

I suggest that any reconsideration of a final award take into account the doctrine of Functus Officio which makes "reconsideration" a dangerous road.

Arbitrators are prohibited from modifying a final award except to correct clerical, computational errors in the final award. See College of Commercial Arbitrators Guide to Best Practices, 4th Edition pp.324-328.

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This page contains a single entry from the blog posted on February 24, 2018 11:01 AM.

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