Functus Officio Doctrine
Functus officio is a Latin maxim which means that the jurisdiction of the designated authority comes to an end once he has performed his functions for which he was appointed. In the arbitration scenario, the arbitral tribunal is appointed to adjudicate a dispute which is fully laid down under their terms of reference. Once the tribunal has passed a final award and entirely adjudicated the dispute, then the tribunal becomes functus officio.
The arbitral tribunal is not functus officio until they have pronounced their final award. Till then they still have jurisdiction to allow belated applications that refer to the substance of the dispute. Once the award is delivered to the parties, the arbitral tribunal cannot review their own award and becomes functus officio.
However, under circumstances of a S. 33 application, a window of 30 days is provided to the parties and the tribunal where the arbitrators even after passing the final award do not become functus officio. Within these 30 days, either the tribunal suo moto or the parties have to apply to seek correction or clarification of the award. Once this written application is received and denied, then the arbitral tribunal becomes functus officio. If the written application is accepted, then after giving its interpretation or an additional award, the tribunal shall become functus officio. However, the same party does not get a second chance for seeking clarifications on the final award. Each application has to include all the clarifications that one needs.
The arbitral tribunal would become functus officio i.e., its authority to act ceases and the reference terminates if no written request is received for any clarification or correction of the award within the 30 days’ time limit provided under this provision.
What happens if a party seeks enforcement after the tribunal has become functus officio and there are clerical errors or separate issues to be addressed?
It is important for the lawyers representing the clients in the arbitration to read the award thoroughly as soon as it is pronounced. It shall help them to find any clerical or interpretational errors so that they can be quickly resolved under a S. 33 application. The first action taken by lawyers in practice is to read the award thoroughly and identify whether there are any clerical errors because they have a time period of only 30 days to get them rectified.
If the lawyers miss any important interpretational point of view within the 30 days time limit, and the award is presented for enforcement; then the same cannot be sent back to the arbitral tribunal because their mandate would have expired. The court also does not have jurisdiction to change or modify or add anything to the award. In such a situation, the opportunity to ask for a modification or explanation is missed by the parties and there is no rectification for the same.
However, for clerical issues, the Court might just accept the plea after the consent of the parties and rectify a clerical mistake in the enforcement order. This is not by rule or stated in any law. Courts may decide not to do so.
Solutions of such instances will highly vary according to the facts and circumstances of each case. The mood of the judge will also change the decision that he is going to take. Thinking on one’s feet is hence the biggest challenge of a disputes lawyer.
Can the arbitral tribunal review its award?
An arbitral tribunal, however cannot review an award under this provision. It is important for the tribunal to correct and clarify clerical or typographical errors. But review of the dispute on merits is not provided under the Act. The tribunal has no authority to accept an application where under the garb of a S. 33 application, seeks to ask for a review on merits. Any omitted issue or claim which was discussed in the proceedings can be allowed to be added.
The tribunal, thus cannot reopen the case even if fresh and extremely important evidence comes to light after pronouncement of award since their authority to re-examine the case ceases to exist.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.