Does the doctrine of functus officio — "having performed his office" — allow an arbitrator to change his award? Yes, the Second Circuit held today — if the parties agreed in advance to permit amendments. T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., No. 08-08-3894-cv(L) (2d Cir. Jan. 14, 2010).
The panel also confirmed the court's "judicial gloss" on the old extra-statutory "manifest disregard of law" theory for attacking awards. Id.. slip op. at 13. (Old because Hall Street Associates, LLC v. Mattel, Inc., 128 S. Ct. 1396 (2008), deemed section 10 of the federal Arbitration Act the sole source of grounds for vacatur.) The court uses MD as shorthand for the statutory grounds.
By the way, the First Circuit handled a functus officio point last January . . . and did pretty much the same thing. Annals of Arbitration: Kaput to Functus Officio?
