Sample Rules for Independent Arbitration
Rule 1. Governing Law and Conflict with Law
[INSERT STATE] law governs the substantive issues in this arbitration. If any of these Rules, or modification of these Rules agreed on by the Parties, is determined to be in conflict with a provision of applicable [INSERT STATE] law, the provision of law will govern over the Rule in conflict, and no other Rule will be affected.
Rule 2. Commencing an Arbitration
The Arbitration is deemed commenced when all relevant parties: [LIST PARTIES] (the “Parties”): (i) agree to commence this arbitration; and (ii) select and engage the Arbitrator.
Rule 3. Preliminary and Administrative Matters
(a) The Arbitrator may convene, or the Parties may request, administrative conferences to discuss any procedural matter relating to the administration of the Arbitration.
(b) Each of the Parties is responsible to advance one equal pro-rata share of the fees and expenses of the Arbitrator (the “Advancement”). If any one party fails to timely pay its Advancement, the Arbitrator may so inform all Parties in order that one of them may advance the required payment. If one Party pays another’s Advancement, the Arbitration shall proceed and the Arbitrator will allocate the non-paying Party’s share of such costs, with interest at the highest rate allowed by [INSERT STATE] law, in accordance with the Arbitration award.
(c) The Arbitrator will destroy all documents submitted to the arbitrator within 30 days of the close of the Arbitration.
(d) The fees and expenses of the Arbitration shall be borne by the Party or Parties found to have NOT prevailed in the Arbitration. Accordingly, any Arbitration award in this matter shall include a declaration of the “Prevailing Party” and an allocation of fees and expenses to the Prevailing Party for that Party’s Advancement. [Alternatively: Each Party shall be responsible for its pro-rata share of fees and costs of Arbitration, but the Arbitrator may allocate reimbursement of a prevailing Party’s Advancement in the Arbitrator’s discretion.]
(e) To the extent [ADDITIONAL PARTY] is considered a third party in regard to any agreement between or among the other Parties, [ADDITIONAL PARTY] will be treated as a Party to this Arbitration. Where a Party to an Arbitration under these Rules seeks to compel any other third party to participate in a pending Arbitration, the Arbitrator shall determine such request, taking into account all circumstances the Arbitrator deems relevant and applicable.
Rule 4. Number of Arbitrators
There shall be one Arbitrator.
Rule 5. Service
(a) The Arbitrator may at any time require electronic filing and service of documents in this Arbitration via email. If an Arbitrator requires email-filing, the Parties shall maintain and regularly monitor a valid, useable and live email address for the receipt of all documents filed in the Arbitration. Any document filed electronically shall be considered as filed on the date of transmission by email to all parties and the Arbitrator. Any document so filed by 11:59 p.m. (of the sender’s time zone) on a certain date, shall be deemed filed on that date.
(b) Every document filed in accordance with (a) above shall be deemed to have been signed by the Arbitrator, attorney or declarant who transmits the document and shall bear the typed name, address, telephone number, and Bar number (of a signing attorney). Documents containing signatures of Parties and third-parties (i.e., motions, affidavits, stipulations, etc.) may also be filed electronically as if it were an original.
(c) Transmission of documents as discussed in (a) and (b) above shall be considered as valid and effective service and shall have the same legal effect as an original paper document. Emailed service shall be deemed complete when the party initiating service completes the transmission of the electronic document(s) to all recipients.
(d) If an electronic filing or service does not occur because of an error in the transmission of the document or otherwise for good cause shown, the Arbitrator may permit the document to be filed nunc pro tunc to the date it was first attempted to be sent electronically. Or, in the case of service, the Party shall, absent extraordinary circumstances, be entitled to an order extending the date for any response or the period within which any right, duty or other act must be performed.
(e) For documents that are not filed electronically, service by a Party under these Rules is effected by providing one signed copy of the document to each Party and two copies to the Arbitrator. Service may be made by hand-delivery, overnight delivery service or U. S. mail. Service by any of these means is considered effective upon the date of deposit of the document. Service by facsimile transmission is considered effective upon transmission.
(f) In computing any period of time prescribed or allowed by these Rules for a Party to do some act within a prescribed period after the service of a notice or other paper on the Party and the notice or paper is served on the Party only by U.S. Mail, three (3) calendar days shall be added to the prescribed period.
Rule 6. Notice of Claims
(a) Each Party shall afford all other Parties reasonable and timely notice of its claims, affirmative defenses or counterclaims. Any such notice shall include a short statement of its factual basis. No claim, remedy, counterclaim, or affirmative defense will be considered by the Arbitrator in the absence of such prior notice to the other Parties no later than fourteen (14) calendar days before the Arbitration Hearing.
(b) Within fourteen (14) calendar days after the commencement of the Arbitration, Claimant shall submit to the Arbitrator and serve on the other Parties a notice of its claim and remedies sought. Such notice shall consist of either a Demand for Arbitration or a copy of a Complaint previously filed with a court. (In the latter case, Claimant may accompany the Complaint with a copy of any Answer to that Complaint filed by any Respondent).
(c) Within fourteen (14) calendar days of service of the notice of claim, a Respondent may submit to the Arbitrator and serve on other Parties a response and must so submit and serve a statement of any affirmative defenses (including jurisdictional challenges) or counterclaims it may have.
(d) Within fourteen (14) calendar days of service of a counterclaim, a claimant may submit to the Arbitrator and serve on other Parties a response to such counterclaim and must so submit and serve a statement of any affirmative defenses (including jurisdictional challenges) it may have.
(e) Any claim or counterclaim to which no response has been served will be deemed denied.
Rule 7. Amendment or Addition of Claims
After the submission of a claim under Rule 6 above, a Party may make a new or different claim against a Party or any third Party that is subject to Arbitration in the proceeding up to fourteen (14) calendar days before the Hearing. Such claim shall be made in writing, filed with the Arbitrator and served on the other Parties. Any response to the new claim shall be made within fourteen (14) calendar days after service of such claim.
Rule 8. Interpretation of Rules and Jurisdictional Challenges
(a) Once appointed, the Arbitrator shall resolve disputes about the interpretation and applicability of these Rules and the conduct of the Arbitration Hearing. The resolution of the issue by the Arbitrator shall be final.
(b) Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration
is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and
arbitrability issues as a preliminary matter.
(c) The Arbitrator may upon a showing of good cause or sua sponte, when necessary to facilitate the Arbitration, extend or amend any deadlines established in these Rules, provided that the time within which the Arbitrator must render the Award may not be altered.
Rule 9. Representation
(a) The Parties may be represented by counsel or any other person of the Party’s choice. Each Party shall give prompt written notice to the Arbitrator and the other Parties of the name, address, telephone and fax numbers, and email address of its representative. The representative of a Party may act on the Party’s behalf in complying with these Rules.
(b) Changes in Representation. A Party shall give prompt written notice of any change in its representation.
Rule 10. Withdrawal from Arbitration
(a) No Party may terminate or withdraw from this Arbitration once it is commenced except by written agreement of all Parties to the Arbitration.
(b) A Party that asserts a claim or counterclaim may unilaterally withdraw that claim or counterclaim without prejudice by serving written notice on the other Parties
and on the Arbitrator. However, the opposing Parties may, within fourteen (14) calendar days of service of notice of the withdrawal of the claim or counterclaim, request that
the Arbitrator order that the withdrawal be with prejudice. If such a request is made, it shall be determined by the Arbitrator.
Rule 11. Ex Parte Communications
No Party may have any ex parte communication with the Arbitrator. The Arbitrator may authorize any Party to communicate directly with the Arbitrator by email or other written correspondence, so long as copies are simultaneously forwarded to the other Parties.
Rule 12. Arbitrator Selection and Replacement
(a) the Parties shall select one Arbitrator that has no material conflicts.
(b) If, for any reason, the Arbitrator who is selected is unable to fulfill the Arbitrator’s duties, a successor Arbitrator shall be chosen in accordance with this Rule.
(c) Any disclosures regarding the selected Arbitrator shall be made as required by law or within ten (10) calendar days from the date of appointment. The obligation of the Arbitrator to make all required disclosures continues throughout the Arbitration process.
(d) At any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause. The challenge must be based upon information that
was not available to the Parties at the time the Arbitrator was selected. A challenge for cause must be in writing and exchanged with opposing Parties who may respond
within seven (7) days of service of the challenge. The challenge will then be provided to a neutral decision-maker agreed upon by the Parties and that decision-maker’s ruling will be final.
Rule 13. Preliminary Conference
At the request of any Party or at the direction of the Arbitrator, a Preliminary Conference shall be conducted with the Parties or their counsel or representatives. The Preliminary Conference may address any or all issues necessary for the appropriate conduct of the Arbitration Hearing in an expeditious manner.
Rule 14. Discovery and Summary Disposition of a Claim or Issue
(a) Unless good cause is shown for formal discovery, the parties will not engage in discovery in advance of the Arbitration Hearing (however, pursuant to Rule 17 the Arbitrator may issue subpoenas necessary to secure documents and evidence at the time of the hearing). Each Party is required to provide up to ten documents (such documents to include all attachments and/or email string units) in response to reasonable requests for the production of specific documents identified by date, author and known recipients. This Rule does not limit any Party from conducting their own investigation and undertaking informal discovery. If the Parties agree or the Arbitrator determines it appropriate, each Party (or each set of aligned Parties) may be allowed to take one deposition of a witness with knowledge of relevant facts.
(b) There shall not be any dispositive motions before the Arbitration Hearing.
Rule 15. Scheduling and Location of Hearing
(a) The Arbitrator, after consulting with the Parties, shall determine the date, time and location of the Hearing. The Arbitrator and the Parties shall schedule consecutive Hearing days if more than one day is necessary.
(b) If a Party has failed to participate in the Arbitration process, the Arbitrator may set the Hearing without consulting with that Party. The non-participating Party shall be served with a Notice of Hearing at least thirty (30) calendar days prior to the scheduled date unless the law of the relevant jurisdiction allows for or the Parties have agreed to shorter notice.
(c) The Arbitrator, in order to hear a third party witness, or for the convenience of the Parties or the witnesses, may conduct the Hearing at any location.
Rule 16. Pre-Hearing Submissions
(a) Except as set forth in any scheduling order that may be adopted, at least fourteen (14) calendar days before the Arbitration Hearing, the Parties shall file with the Arbitrator and
serve upon each other: (1) a list of the witnesses they intend to call, including any experts; (2) a short description of the anticipated testimony of each such witness and an
estimate of the length of the witness’ direct testimony, and (3) a list of all exhibits intended to be used at the Hearing.
(b) The Parties shall exchange with each other a copy of any such exhibits to the extent that the exhibits have not been previously exchanged no later than three-days before the date of the Arbitration Hearing. The Parties should pre-mark exhibits and shall attempt to resolve any disputes regarding the admissibility of exhibits prior to the Hearing.
(c) The Parties each may submit a concise written statement of position, including summaries of the facts and evidence a Party intends to present, discussion of the applicable law and the basis for the requested Award or denial of relief sought of not more than two double-spaced, type-written pages in normal, 12 point Times New Roman font. The statements, which may be in the form of a letter, shall be filed with the Arbitrator and served upon the other Parties, no later than seven (7) calendar days before the Hearing date. There shall be no rebuttal statements or other pre-Hearing written submissions.
Rule 17. Securing Witnesses and Documents for the Arbitration Hearing
At the written request of a Party, all other Parties shall produce for the Arbitration Hearing all specified witnesses in their employ or under their control without need of
subpoena. The Arbitrator may issue subpoenas for the attendance of witnesses or the production of documents either prior to or at the Hearing pursuant to these Rules. The subpoena or subpoena duces tecum shall be issued in accordance with the applicable law. In the event a Party or a subpoenaed person objects to the production of a witness or other evidence, the Party or subpoenaed person may file an objection with the Arbitrator, who shall promptly rule on the objection, weighing both the burden on the producing Party and witness and the need of the proponent for the witness or other evidence.
Rule 18. The Arbitration Hearing
(a) The Arbitrator will conduct the Arbitration Hearing in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is determined reasonable and appropriate to do so.
(b) The Arbitrator shall determine the order of proof, which will generally be similar to that of a court trial.
(c) The Arbitrator shall require witnesses to testify under oath if requested by any Party, or otherwise in the discretion of the Arbitrator.
(d) Strict conformity to federal or state rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product. The Arbitrator shall consider evidence that he or she finds relevant and material to the dispute, giving the evidence such weight as is appropriate. The Arbitrator may be guided in that determination by principles contained in the Federal Rules of Evidence or [INSERT STATE] law. The Arbitrator may limit testimony to exclude evidence that would be immaterial or unduly repetitive, provided that all Parties are afforded the opportunity to present material and relevant evidence.
(e) The Parties will not offer as evidence, and the Arbitrator shall neither admit into the record nor consider (except to the extent that applicable law permits
the admission of such evidence): (i) settlement offers or offers to compromise made by the Parties; (ii) statements or conduct uttered during settlement negotiations; and (iii) statements or recommendations made by a mediator or other person in connection with efforts to resolve the dispute being arbitrated.
(f) The Hearing or any portion thereof may be conducted telephonically with the agreement of the Parties or in the discretion of the Arbitrator.
(g) When the Arbitrator determines that all relevant and material evidence and arguments have been presented, and any interim or partial awards have been issued, the Arbitrator shall declare the Hearing closed. The Arbitrator may allow the Parties each to make closing arguments and may defer the closing of the Hearing until a date agreed upon by the Arbitrator and the Parties, to permit the Parties to submit post-Hearing briefs. If post-Hearing briefs are to be submitted, or closing arguments are to be made, the Hearing shall be deemed closed upon receipt by the Arbitrator of such briefs or at the conclusion of such closing arguments. Post-Hearing briefs are to be no more than five double-spaced, type-written pages in normal, 12 point Times New Roman font and may be in the form of a letter.
(h) At any time before the Award is rendered, the Arbitrator may, sua sponte or on application of a Party for good cause shown, re-open the Hearing. If the Hearing is reopened and the re-opening prevents the rendering of the Award within the time limits specified by these Rules, the time limits will be extended until the reopened Hearing
is declared closed by the Arbitrator.
(i) The Arbitrator may proceed with the Hearing in the absence of a Party that, after receiving notice of the Hearing fails to attend. The Arbitrator may not render an Award solely on the basis of the default or absence of the Party, but shall require any Party seeking relief to submit such evidence as the Arbitrator may require for the rendering of an Award. If the Arbitrator reasonably believes that a Party will not attend the Hearing, the Arbitrator may schedule the Hearing as a telephonic Hearing and may receive the evidence necessary to render an Award by affidavit. The notice of Hearing shall specify
if it will be in person or telephonic.
(j) Any Party may arrange for a stenographic or other record to be made of the Hearing and shall inform the other Parties in advance of the Hearing. After proper notice, each Party will be obligated to advance the cost of such stenographic record and that amount will be considered as part of the Advancement discussed in Rule 3, above. The record shall be shared with the Arbitrator and all Parties.
Rule 19. Awards
(a) The Arbitrator shall render a Final Award or a Partial Final Award within twenty (20) calendar days after the date of the close of the Hearing as defined herein.
(b) In determining the merits of the dispute the Arbitrator shall be guided by [INSERT STATE] law and equity as the Arbitrator deems to be most appropriate. The Arbitrator may grant any remedy or relief that is just and equitable, including but not limited to specific performance of a contract, disgorgement or any other equitable or legal remedy.
(c) In addition to a Final Award or Partial Final Award, the Arbitrator may make other decisions, including interim or partial rulings, orders and Awards.
(d) Interim Measures. The Arbitrator may grant whatever interim measures are deemed necessary, including injunctive relief and measures for the protection or conservation
of property and disposition of disposable goods. Such interim measures may take the form of an interim Award, and the Arbitrator may require security for the costs of
such measures. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the
right to arbitrate.
(e) The Award of the Arbitrator must allocate Arbitration fees and Arbitrator compensation and expenses.
(f) The Award of the Arbitrator must also allocate attorneys’ fees and expenses and interest (at the highest rate allowable under [INSERT STATE] law).
(g) The Award will consist of a short written statement signed by the Arbitrator regarding the disposition of each claim and the relief, if any, as to each claim. Unless all Parties
agree otherwise, the Award shall also contain a concise written statement of the reasons for the Award.
(h) After the Award has been rendered, the Award shall be issued by serving copies on the Parties. Service may be made by U. S. Mail. It need not be sent certified or registered.
(i) Within seven (7) calendar days after service of the Award, any Party may serve upon the other Parties and the Arbitrator a request that the Arbitrator correct any computational, typographical or other similar error in an Award (including the correct allocation of fees, costs, attorney’s fees or Advancement), or the Arbitrator may sua sponte propose to correct such errors in an Award. A Party opposing such correction shall have seven (7) calendar days thereafter in which to file any objection. The Arbitrator may make any necessary and appropriate correction to the Award within twenty-one (21) calendar days of receiving a request or fourteen (14) calendar days after the Arbitrator’s proposal to do so. The Arbitrator may extend the time within which to
make corrections upon good cause. The corrected Award shall be served upon the Parties in the same manner as the Award.
(j) The Award is considered final, for purposes of a judicial proceeding to enforce, modify or vacate the Award fourteen (14) calendar days after service is deemed effective if no request for of a corrected Award.
Rule 20. Enforcement of the Award
Proceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the Federal Arbitration Act, 9 U. S. C. § 1 et seq. or
applicable [INSERT STATE] state law. The Parties to an Arbitration under these Rules shall be deemed to have consented that judgment upon the Award may be entered in any court having jurisdiction thereof.
Rule 21. Confidentiality and Privacy
(a) The Arbitrator shall maintain the confidential nature of the Arbitration proceeding and the Award, including the Hearing, except as necessary in connection with a judicial challenge to or enforcement of an Award, or unless otherwise required by law or judicial decision.
(b) Subject to the discretion of the Arbitrator or agreement of the Parties, any person having a direct interest in the Arbitration may attend the Arbitration Hearing. The
Arbitrator may exclude any non-Party from any part of a Hearing.
Rule 22. Waiver
(a) If a Party becomes aware of a violation of or failure to comply with these Rules and fails promptly to object in writing, the objection will be deemed waived, unless the Arbitrator determines that waiver will cause substantial injustice or hardship.
(b) If any Party becomes aware of information that could be the basis of a challenge for cause to the continued service of the Arbitrator, such challenge must be made promptly, in writing, to the Arbitrator and the Parties. Failure to do so shall constitute a waiver of any objection to continued service of the Arbitrator.
Rule 23. Settlement and Consent Award
If, at any stage of the Arbitration process, all Parties agree upon a settlement of the issues in dispute and request the Arbitrator to embody the agreement in a Consent Award, the Arbitrator shall comply with such request unless the Arbitrator believes the terms of the agreement are illegal or undermine the integrity of the Arbitration process. If the Arbitrator is concerned about the possible consequences of the proposed Consent Award, he or she shall inform the Parties of that concern and may request additional specific information from the Parties regarding the proposed Consent Award. The Arbitrator may refuse to enter the proposed Consent Award and may withdraw from the case.
Rule 24. Sanctions
The Arbitrator may order appropriate sanctions for failure of a Party to comply with its obligations under any of these Rules. These sanctions may include, but are not limited to, assessment of Arbitration fees and Arbitrator compensation and expenses, any other costs occasioned by the actionable conduct including reasonable attorneys’ fees, exclusion of certain evidence, drawing adverse inferences, or in extreme cases determining an issue or issues submitted to Arbitration adversely to the Party that has failed to comply.
Rule 25. Disqualification of the Arbitrator as a Witness or Party and Exclusion of Liability
(a) The Parties may not call the Arbitrator or its agent as a witness or as an expert in any pending or subsequent litigation or other proceeding involving the Parties and relating to the dispute that is the subject of the Arbitration. The Arbitrator and its agents are also incompetent to testify as witnesses or experts in any such proceeding.
(b) The Parties shall defend and/or pay the cost (including any attorneys’ fees) of defending the Arbitrator from any subpoenas from outside Parties arising from the Arbitration.
(c) The Parties agree that the Arbitrator is not a necessary Party in any litigation or
other proceeding relating to the Arbitration or the subject matter of the Arbitration, and neither the Arbitrator nor its employees or agents, shall be liable to any Party for any act or omission in connection with any Arbitration conducted under these Rules, including but not limited to any disqualification of or recusal by the Arbitrator.
