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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 (5)

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.

Kevin Callahan:

As per the functus officio doctrine, when arbitrators have fully adjudicated a matter their authority over that matter has ended. With limited exceptions, a final award precludes an arbitrator from revisiting the settled matters absent party agreement. If the parties agree that an arbitrator may issue partial final awards then such awards are final even though there remain separate issues to be arbitrated. Once a partial final award is issued an arbitrator may not entertain motions under AAA Rule R-58 related to the settled issue, only those related to issues left to be arbitrated. In such circumstances a party's monetary recovery depends on obtaining a court order.

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