Post Award Issues: ASA Special Series No. 38 - Hardcover
Post Award Issues: ASA Special Series No. 38 - Electronic
Extension and Resumption of the Function after
the Final Award
The title of this chapter represents a challenge for any speaker for
two reasons. First, after the tribunal has issued its final award it is
functus officio. That means its mission is complete. There is nothing
more for it to do.
There are, however, exceptions. This represents the second
challenge because the exceptions I might talk about have already been
covered extensively by my colleagues on this panel. As we know the
tribunal may correct and interpret its award and it may revise the
award if it is remitted to it by the competent court, for example
because the award does not determine all the disputes referred to it.
Furthermore, Michael Schneider in his written introductory
comments to this program referred to other duties and functions of the
tribunal post award, such as notification of the award, accounting for
funds, decisions on fees and giving evidence in proceedings.
Apart from these exceptions, the short answer is that after the
tribunal has issued its final award the tribunal's mission is complete.
The same principle applies to any partial award, in relation to the
matters decided in that partial award.
The question, however, implicit in the title of this topic, is
whether this is a desirable state of affairs. Are there situations where
the tribunal should continue or should resume its function? If so, how
might this be achieved?
In discussing this, I will distinguish between two different
situations, which give rise to different considerations. First, whether
the tribunal should be able to resume its function in relation to the
subject matter of the original proceedings. Second, whether the
tribunal's function could be extended to deal with new matters and
disputes between the same parties? There may be a grey area which
lies between the two situations where it is not clear whether the issue
relates to a matter already considered and decided by the tribunal or
whether it is a new matter.
Andrew FOYLE is a Barrister. He was called to the English Bar and
joined the chambers, One Essex Court, in 2006 to develop his practice
as an arbitrator in international arbitration. Prior to that, he had been a
solicitor and was a partner at Lovells for twenty-four years where he
was head of the firm's international arbitration practice (from 1998 to
2006) and was Senior Partner of the Hong Kong office (from 1994 to
1998). He has been a Member of the International Court of Arbitration
of the International Chamber of Commerce since 2006 and is a Member
of the Drafting Sub-Committee of the ICC Task Force which is revising
the ICC Rules of Arbitration. Mr. Foyle is a Fellow of the Chartered
Institute of Arbitrators and a Member of the LCIA. He is the immediate
past Chair of the IBA Arbitration Committee’s Sub Committee on the
Recognition and Enforcement of Arbitral Awards. He is also the editor
of Dispute Resolution International, a journal launched by the IBA in 2007.