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Willful Failure to Comply with a Partial Final Award - What are your thoughts?

In a situation where an arbitrator (or tribunal) issues a partial final award, and there is a willful failure by one of the parties to comply with the award (e.g., a refusal by respondent to voluntarily pay the monetary amount to the claimant ordered by the arbitrator), may the arbitrator entertain a motion for sanctions by the claimant under AAA Commercial Rule R-58? Or is the arbitrator functus officio on that portion of the dispute on which she has entered a final award?

Please provide your thoughts/comments below.

Comments (4)

Anonymous:

Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987) provides the framework to answer the question.

Everything I have read on this issue informs me that when a final award, even a partial one, is issued, the arbitrator is functus officio. It's up to the winner to enforce the award, including doing whatever they have to to collect funds owed. Entertaining a motion for sanctions would seem to me to lie outside the authority of the arbitrator(s).

The arbitrator should look at all the circumstances and relevant dates related to the partial final award. Unless there is a "power" provided by the rules, the applicable arbitration law, or the parties' agreement, the arbitrator is functus officio for the partial final award. Without an extant expressly stated "power" to so act regarding a "final" award, the arbitrator should refrain from taking any action.

Judge Gerald Harris:

I believe that sanctions are intended to advance an arbitration proceeding in an orderly and efficient manner. Enforcement of awards is for the court and beyond the purview of the arbitrator.

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