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Interim Decision

Tuesday, June 30, 2026 4:40 AM | Anonymous

What are Interim Custody Orders? Understanding the Process

When an arbitrator issues an interim decision on the merits, should the parties be afforded an opportunity to submit objections or comments identifying perceived errors before the arbitrator proceeds further? At the same time, does issuing such an interim decision create a risk that the arbitrator could be deemed functus officio and thereby lose jurisdiction over the matter?

What are your thoughts?

Comments

  • Tuesday, June 30, 2026 12:48 PM | Robert A. Creo
    The question of functus officio is easily addressed by an express retention of jurisdiction and the ruling itself. Since there will be further proceedings and submissions anyway on open issues, the arbitator could offer opportunity to respond cut I would require it to be by formal motion or submission filing and not alllow back and forth banter via email or lette.
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  • Tuesday, June 30, 2026 12:52 PM | Georges Affaki
    It depends on what is meant by an "interim decision".
    If it is truly interim, it is, by definition, not final. I therefore do not see how the tribunal could become functus. The tribunal has not exhausted its mandate and remains free, where appropriate, to revisit an earlier determination before rendering its award on the matter determined in the interim decision.
    The parties should certainly be permitted to identify any perceived errors. The tribunal must then distinguish between an attempt to reargue the case and the correction of a genuine error. The latter may well justify reconsideration.
    The position is, however, different if what is described as an interim decision is in reality a partial award finally disposing of one or more claims or issues. In that event, the tribunal may indeed be functus officio in relation to those matters, even though it retains jurisdiction over the remainder of the case.
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  • Tuesday, June 30, 2026 12:54 PM | Victor Bianchini
    I cannot fathom why an Arbitrator would wish to file an "interim Decision." There may be some unique reason, in law, as to why, and I will follow this thread to see what those reasons might be, such as waiting for a damages argument, but not implicating the substantive decision itself. But I don't think it is a wise decision to do so otherwise. Arbitrators need to be decisive, and floating an interim decision can open up a can of worms, including, but not limited to, functus officio claims. If an arbitrator has questions that bear on his or her decision, then those ought to be asked independent of the decision itself.
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  • Tuesday, June 30, 2026 1:21 PM | Mark Bunim
    An interim decision on the merits is subject to objections or comments ( and reversal by the arbitrators who issued it) unless the parties agreed in advance that the arbitrators' ruling would be interim (or partial final) AND that what was to be ruled upon would be final, i.e. functus officio. See, the NY Court of Appeals decision in American International Specialty Lines Insurance Co. v. Allied Capital Corp. 37 NY3d 807 (2020).
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  • Tuesday, June 30, 2026 1:21 PM | Rick Flake
    This question brings up inherent issues when entering an interim award. Many counsel will want to wait until an award is given before going through the trouble of marshalling and submitting proof of attorneys fees, for example. But, the interim award poses possible risks for the arbitrator(s) as the above question presents. If at all possible, I like to hear all evidence (even if attorneys fees are submitted post hearing by affidavit) so I can issue one award. I think that is the safer practice.
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    • Tuesday, June 30, 2026 4:58 PM | David Waddell
      I agree with Mr. Flake.
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  • Tuesday, June 30, 2026 1:37 PM | David A Loewenstein
    I give the parties a chance to seek reconsideration, as if it were a court case. It seems only fair to allow them to identify any errors I may have made to enable me to make the decision more accurate.
    I am not sure that has always been the result. Most of the time the parties simply reargue the arguments they made previously (which I rejected), and it prolongs the process.
    I do not believe my authority expires after I issue an interim ruling (otherwise you could never issue interim rulings)
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  • Tuesday, June 30, 2026 1:44 PM | Anonymous
    An interim award should make clear what issues remain to be resolved. An interim award that does not resolve all issues is not confirmable so there does not appear to be a risk of losing jurisdiction. Even a partial final award must make clear what is resolved and what remains open. When I issue an interim award, in the follow-up proceedings, I often invite discussion on all issues, particularly if they think I have not addressed the evidence fully. I also consider providing a tentative before issuing an interim or final award so there can be a full discussion of the evidence and issues. I want them to tell me what they think I missed or where they think I am wrong. Having that information allows me to make the award stronger and hopefully lets them know they were heard -- even if they disagree.
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  • Tuesday, June 30, 2026 2:46 PM | Donald R. Alvarez
    Great comments and thoughts. These are issues I have discussed with other arbitrators and case managers over the years. I even attended an AAA webinar during which these issues were addressed and the opinions given by the speakers were varied, just as the comments below. I think addressing these issues during the initial Preliminary Hearing is important, especially getting the parties' agreement on how the Interim or Partial Final Awards may be handled. Then, incorporate the agreement in the Report/Scheduling Order.
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  • Tuesday, June 30, 2026 2:58 PM | D. Andrew Byrne
    An interim decision is quite common where attorneys' fees and costs are at issue. I like the suggestions from the other arbitrators regarding making clear that the arbitrator is retaining jurisdiction and to limit the remaining case to the issue of fees and costs (or whatever else survives).
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    • Tuesday, June 30, 2026 6:49 PM | Cecil Morris
      I agree with Mr. Byrne. At the Preliminary Hearing and Scheduling Conference, I ask whether any of the parties is requesting fees and costs. If so, I explain that after the hearing, I will issue an Interim Award identifying the prevailing party and giving that party an identified period of time either to submit a stipulation as to fees and costs or to move for fees and costs. After that, I explain that I will issue a Final Award. All of this is then reflected in the Preliminary Hearing and Scheduling Order.
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  • Tuesday, June 30, 2026 3:10 PM | Christie Underwood
    FYI: I always insert the following language into Interim Decisions. Thus far, after several years of using this language, I am unaware of a problem with losing jurisdiction to conclude all of the outstanding issues in a case. Hope this is helpful. You may share it if you wish.

    Reservation of Jurisdiction

    The Panel’s Interim Decision on the Merits of the Dispute does not complete all of the outstanding issues in this case. The Panel specifically reserves jurisdiction to make further decisions in this case, including, but not limited to: the award of attorneys’ fees, and associated costs, if applicable. The Panel also retains jurisdiction to make further findings anticipated to include the fees and expenses of the Panel, administrative fees and expenses of the AAA, arbitration costs and expenses, post-judgment/post-award interest, and any other matters contemplated by the AAA Construction Rules, or otherwise necessary for a final determination of the disputes in the Panel’s Award.

    Accordingly, at this time, the Panel is not deemed and does not intend itself as functus officio as to any matters in this case.

    The undersigned Panel, having executed this Interim Decision on the Merits of the Dispute on the date set forth below, hereby retains jurisdiction as set forth above.
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    • Tuesday, June 30, 2026 3:21 PM | Edward Chiasson
      The term"interim decsion" should not be used for a partial award on the meritsw. The word "interim" means the issue can be revisitedx. That is not the object or effect of a partial award. Once made, the arbitrator is functus on that issue, but not only the remaining issues in the arbitration.
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  • Tuesday, June 30, 2026 4:43 PM | Amy Semmel
    I frequently issue a tentative rulings so that I can obtain the parties’ feedback before issuing a final ruling on a motion but have never done so with respect to an award. A tentative ruling is far different than permitting a motion for reconsideration. Most of the AAA rules, including Commercial Rule 52, provide something to the effect of “The arbitrator is not empowered to re-determine the merits of any claim already decided.” Thus, is it especially important to distinguish between a tentative ruling and an Interim Award. AAA Rule 52 codifies the common-law doctrine of functus officio. There is considerable authority that arbitrators are not authorized to revisit the merits of an award. E.g. New United Motor Mfg., Inc. v. United Auto Workers Loc. 2244, 617 F. Supp. 2d 948, 958 (N.D. Cal. 2008) (finding an award final once the arbitrator decided “every point required by and included in” the liability phase of bifurcated arbitration); Int’l Bhd. of Elec. Workers, Loc. Union 824 v. Verizon Fla., LLC, 803 F.3d 1241, 1245 (11th Cir. 2015);

    In most of my cases, there is the possibility of recovering statutory attorney fees and costs. I think the parties appreciate not having to brief attorney fees and costs in advance of knowing which side prevailed (in whole or in part) accordingly, I regularly inform the parties that I will issue an Interim Award, then consider attorney fees and costs. I agree with others it is important to be upfront about what will be decided and when.
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  • Wednesday, July 01, 2026 5:45 PM | Jeremy M. Goodman
    An interim decision on the merits is common, especially when waiting for the parties to address a subsequent issue like damages, attorneys' fees and costs, etc. In theory, it may also be appropriate on the merits, unless the parties have agreed to the contrary. If agreed, and so identified with jurisdiction expressly retained in the interim decision, the issue of functus officio is in my view misplaced. However, I agree with the comments that suggest it might be opening a can of worms as the saying goes--I would prefer to be decisive and where I was uncertain or want party input prefer the option of questioning during a hearing or requesting further briefing on discrete issues.
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