Chapter 19 - § 19.4 • SUBJECT MATTER JURISDICTION OF THE ARBITRATOR

• Jurisdiction: Colorado

§ 19.4 • SUBJECT MATTER JURISDICTION OF THE ARBITRATOR

The parties may have in their agreement an express provision as to the jurisdiction of the arbitrator. For example, if incorporated into the agreement, AAA Commercial Arbitration Rule R-7, "Jurisdiction," provides that:

• The arbitrator has power to rule on his or her own jurisdiction, including as to existence, scope, or validity of the arbitration agreement; and
• The arbitrator has power to determine the existence or validity of a contract containing the arbitration clause.

The term "power" generally means jurisdiction. However, generally, the arbitrator's jurisdiction is defined by the disputes that are submitted to arbitration. When the AAA rules are incorporated into the arbitration agreement, this jurisdiction of the arbitrator is simply a part of the agreement of the parties. Generally, such agreements granting such jurisdiction or power to the arbitrator are upheld. The CRUAA, C.R.S. §§ 13-22-206(2) and (3), is generally contrary to Rule R-7; however, the CRUAA, C.R.S. § 13-22-204, permits parties to agree to waive §§ 13-22-206(2) and (3).

Generally, once an arbitration commences, exclusive jurisdiction over the matter rests with the arbitrator, at least until a motion, etc. is filed with the court with respect to a matter over which it has jurisdiction. See § 11.8. Similarly, when a court grants a motion to stay litigation and compel arbitration, the arbitrator assumes jurisdiction, although the court may retain certain "supervisory" jurisdiction. See § 9.6.1.

Once an arbitrator issues an award, the arbitrator generally loses jurisdiction under the doctrine of functus officio. See § 18.1. However, there are exceptions, defined by the CRUAA and by common law under the FAA, for the arbitrator to correct or modify the award. See § 17.3.⁵⁰ These exceptions may be premised upon rules incorporated into the arbitration agreement providing for such jurisdiction of the arbitrator.⁵¹

Sometimes an arbitrator may issue a partial final award — a decision on some issue, such as arbitrability, that is final. An "interim award may be deemed final for functus officio purposes if the award states it is final, and if the arbitrator intended the award to be final."⁵² Thus, as to the issues determined in a partial final award, a motion to vacate can be filed. In that case, if the doctrine of functus officio were applied, the arbitrator would no longer have jurisdiction and could not readdress the issue.

When a...