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


Should institutional rules include a limited provision for the parties to file a motion for reconsideration after the 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.


Although most institutional rules permit only corrections of clerical, typographical or computational errors, arbitrators in the US have broader authority to clarify or modify the award on the request of a party. 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)).)

For me, the case law strikes the proper balance between finally and correction of plain error.

There are specific grounds and time limits for correcting a final award. I think any arbitrator who tries to expand or modify that process by entertaining a post-award motion for reconsideration is on extremely thin ice. Such motions should be discouraged or prohibited.

Since a judge can grant a motion to renew based on those grounds, maybe an arbitrator should have the same power, but only if the motion is made promptly,e.g., within 10 days after the award.

All of those reasons for reconsideration sound to me like the camel poking his nose under the tent. Once any reason is allowed, any reason will be cited as reason for reconsideration by the losing party. Arbitration ought to be final. If the parties don't do their job properly in selecting qualified, mistake-averse arbitrators, that's on them.

Yes, but only for specific and identifiable reasons which can really be said to affect the integrity and validity of the findings and conclusions, such as failure to consider controlling law or precedent under appropriate choice of law principles or the controlling state law; fraud in the presentation of the matter, or failure of the arbitrator to recuse or disqualify himself or herself under the appropriate code of conduct. I would want to think more about whether precedent or controlling law, as alleged in the motion, would have had to have been cited in the original presentation to be a basis for reconsideration.

To achieve finality, I would not allow new statutory or case law, decided after the arbitrator’s decision, to apply even if the new law was made retroactive, unless decided within a short period (as expressed in the Rule) of the decision. I would provide a longer time for an application for reconsideration on the other grounds if the basis was not known, or reasonably known to an objective party, until a stated period of time before the application was filed. I would also provide for counsel fees for an application which is deemed frivolous or inconsistent with the Rule.

I totally agree with Mr Drapeau - or do we want endless litigation?

Rule 50,which allows for modification of awards to correct computational errors and the like, should not not be expanded. There are valid policy reasons for expanding the grounds for permitting modifications, such as avoiding injustice if there is a clear error in interpreting evidence. However such an expansion is likely to lead to motions for reconsideration in virtually every case, leading to additional time and expense and detracting from the fundamental arbitration policy of promoting an expeditious and cost effective decision making process.

I agree with Mr Drapeau - or do we want endless litigation? Cannot give lawyers an opening.

One way to avoid the need for a party to make a motion to renew is for the arbitrator to send the parties a draft of the award to give the tentative losing party an opportunity to help the arbitrator correct the mistake before it becomes final.

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This page contains a single entry by Jeffrey Zaino published on April 28, 2018 8:25 PM.

Motions in Limine - What are your thoughts? was the previous entry in this blog.

Cancellation Fees - What are your thoughts? is the next entry in this blog.

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