Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 24 Functus Officio?

Subject(s):

Jurisdiction — Arbitral tribunals — Arbitrators — International courts and tribunals, decisions — International courts and tribunals, procedure

This chapter examines the meaning of the principle of functus officio. The expression is used to refer to the point when the arbitral tribunal has discharged its duty in full and can no longer act. This point is generally held to be when the tribunal has concluded all matters with which it has jurisdiction to deal pursuant to a particular arbitration agreement. But while the principle itself may be superficially straightforward, its scope and application in certain cases have raised issues. The chapter asks: When can the tribunal be sure that its mandate is complete, i.e. officio functus est? When, if ever, can the arbitrators definitively say that they are ‘free’ of their duties in an arbitration? It suggests that it would be wrong to believe that a tribunal has certainly finished its work when it sends the final award to the parties. In many jurisdictions and under the leading arbitration rules, there will still be a continuing but reduced mandate to correct, interpret, and/or revise the award and perhaps to issue additional awards.