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ARBITRATION RULES FOR COMPLEX COMMERCIAL CASES ©1993, 1998 AMERICORD®, Inc. CONTENTS
ARTICLE 1.0 Scope of Application of Rules Section 1.1 Pre-Dispute Agreements to Arbitrate Section 1.2 Post-Dispute Agreements to Arbitrate Section 1.3 Deviation from Applicable Law ARTICLE 2.0 Notices and Time Limits Section 2.1 Time Limits: method of calculation ARTICLE 3.0 Commencement of Arbitration Process Section 3.1 Statement of Claim Section 3.2 Response to Statement of Claim Section 3.3 Response to Statement of Counterclaim Section 3.4 Withdrawal ARTICLE 4.0 Arbitration Tribunal Section 4.1 Appointment of Single Arbitrators Section 4.2 Tripartite Panels; Appointment of Chair Section 4.3 Rejection of Appointment; Alternate Appointments Section 4.4 Tripartite Panels; Appointment of Party Arbitrators Section 4.5 Tripartite Panels; Appointment of Associate Arbitrators Section 4.6 Rejection of Associate Arbitrators; Alternate Appointments Section 4.7 Duties of Disclosure; Disqualification of Arbitrators Section 4.8 Selection of Substitutes Section 4.9 Contact with Tribunal ARTICLE 5.0 Jurisdiction of Tribunal Section 5.1 Power of Tribunal Section 5.2 Challenges to Jurisdiction of Tribunal Section 5.3 Rulings on Challenges to Jurisdiction ARTICLE 6.0 Scheduling of Hearing Section 6.1 Notice Section 6.2 Postponement of Scheduled Hearing ARTICLE 7.0 Pre-Hearing Procedures Section 7.1 Amendments to Claims, Counterclaims, Responses Section 7.2 Preliminary Conference Section 7.3 Applications for Orders to Produce and Deliver Section 7.4 Depositions; Subpoenas Section 7.5 Applications for Orders to Reduce or Narrow Issues Section 7.6 Interim Measures of Protection ARTICLE 8.0 Conduct of Hearings Section 8.1 Witnesses Section 8.2 Ex Parte Hearings Section 8.4 Management and Direction Section 8.5 Neutral Experts Section 8.6 Viewing, Inspection or Investigation Section 8.7 Closure of Hearing Section 8.8 Pre-Award Termination of Proceedings Section 8.9 Post-Hearing Briefs Section 8.10 Reopening of Hearing ARTICLE 9.0 The Award Section 9.1 Types of Award; Scope of Award Section 9.2 Form of Award; Dissenting Opinion Section 9.3 Time of Award Section 9.4 Correction of Award Section 9.5 Finality of Award; Implementation of Award Section 9.6 Entry of Judgment Section 9.7 Entry of Judgment Section 9.8 Omitted Awards Section 9.9 Reconsideration of Award ARTICLE 10.0 Fees Section 10.1 Definitions Section 10.2 Deposits ARTICLE 11.0 MISCELLANEOUS Section 11.1 Representation by Counsel Section 11.2 Confidentiality Section 11.3 Failure to Comply with Rules, Order of Tribunal or Interim Award Section 11.4 Settlement Negotiations; Mediation Section 11.5 Exclusion of Liability Section 11.6 Waiver ARTICLE 1.0 SCOPE OF APPLICATION OF RULES If parties to a dispute have agreed to resolve it by binding arbitration provided by AMERICORD®, Inc. (AMERICORD) the arbitration will be conducted in accordance with these Rules, as amended by AMERICORD from time to time, except to the extent that the parties in writing agree to modify them, either before the commencement of or during the hearing, and AMERICORD has approved the modification. Section 1.1 Pre-Dispute Agreements to Arbitrate If a contract contains an arbitration provision designating AMERICORD as the provider of arbitration services, the parties to the contract shall submit disputes arising under such contract for arbitration pursuant to these Rules. Parties to a contract with an arbitration provision which designates no provider or a different provider may by mutual agreement submit disputes arising under such contract for arbitration by AMERICORD pursuant to these Rules. Section 1.2 Post-Dispute Agreements to Arbitrate Parties to any dispute which is not required by contract or law to be resolved by arbitration may nevertheless agree to submit the dispute for arbitration by AMERICORD pursuant to these Rules by executing a written Agreement to Arbitrate which so provides. Section 1.3 Deviation from Applicable Law Should any provision of these Rules be in conflict with any mandatory provision of the law, the law shall prevail. ARTICLE 2.0 NOTICES AND TIME LIMITS Any notices required by these Rules shall be in writing and may be served by mail, facsimile transmission or private courier. Notices shall be delivered to the address provided by a party for such purposes or, if no address is so specified, to one of the following: (a) the usual place of business (b) the residence or (c) the mailing address of addressee, or, if none of these can be found, to the last known residence or place of business of addressee. Notices shall be deemed to have been received on the day of delivery to such address. In the event of a dispute over the timeliness of a notice, the party giving the notice has the burden of proof of delivery. Such disputes will be resolved by either the AMERICORD Arbitration Administrator (“Administrator”) or the Arbitration Tribunal, as determined by the Administrator. Section 2.1 Time Limits: Method of Calculation For the purpose of these Rules, "days" means calendar days; provided however that if the last day of any specified period is a non-business day for the addressee at the address to which the notice is given, the specified period is extended to include the next following business day. Time periods for notices given under these Rules shall be deemed to commence the day following the date of delivery of the document, communication or occurrence which triggers the running of the time period.
ARTICLE 3.0 COMMENCEMENT OF ARBITRATION PROCESS Parties who submit a dispute for Arbitration under these Rules shall execute the AMERICORD Agreement to Arbitrate applicable to the dispute. An Arbitration shall be deemed to commence on the date such executed Agreement to Arbitrate and all applicable administrative fees are received by AMERICORD. Section 3.1 Statement of Claim Within twenty-one (21) days of the commencement of the arbitration, as defined in Article 3.0, or within such other time as the parties may agree, a party who wishes to submit a dispute to arbitration ("Claimant"), shall deliver to AMERICORD a written Statement of Claim, with a copy to the other parties ("Respondent(s)"). The Statement of Claim shall contain the following: (a) The names, mailing addresses, telephone and facsimile transmission numbers of the parties and counsel, if known; (b) A copy of the contract provision which constitutes the Pre-Dispute Agreement to Arbitrate, if applicable; (c) A general description of the claim, including the nature of the claim, the legal theory or theories on which the claim is based; (d) The amount claimed; and (e) Any other remedy or relief sought. Section 3.2 Response to Statement of Claim Within twenty-one (21) days of receipt of the Statement of Claim, Respondent shall deliver its Response to AMERICORD, with a copy to Claimant. The Response shall contain the following: (a) A statement of concurrence, disagreement, or modification of the matters contained in the Statement of Claim, together with any applicable particulars. A failure to include a specific response to such a matter shall constitute a general denial of the matter. (b) A general statement of Respondent's affirmative defenses, together with any applicable particulars. (c) A statement of any counterclaim, where applicable, which shall include the information required by Section 3.1 (d) and (e) of these Rules.
Section 3.3 Response to Statement of Counterclaim Within twenty-one (21) days of receipt of any Response which contains a Statement of Counterclaim, Claimant shall deliver to AMERICORD its response to such counterclaim, with a copy to Claimant. Responses to counterclaims shall contain the information required by Section 3.2 (a) and (b) of these Rules. Section 3.4 Withdrawal Once an arbitration has commenced, as defined in this Article 3.0, a party may not withdraw from or terminate the arbitration without the written agreement of all parties to the arbitration.
AMERICORD arbitration hearings shall be conducted by a Tribunal consisting of a single arbitrator unless the applicable Agreement to Arbitrate specifies or the parties otherwise agree to utilize a Tribunal consisting of three arbitrators ("tripartite panel"). All arbitrators whether serving as single arbitrator, Chair of a tripartite panel, Party Arbitrator or Associate Arbitrator, as hereinafter defined, shall be impartial and independent. Any arbitrator who conducts an arbitration under these Rules shall have taken the oath specified by and filed with AMERICORD. Section 4.1 Appointment of Single Arbitrators In cases where the Tribunal consists of a single arbitrator, AMERICORD shall promptly appoint from its Panel of Adjudicators the person to serve as arbitrator and notify the parties of such appointment. Section 4.2 Tripartite Panels; Appointment of Chair In cases where the Tribunal consists of a tripartite panel, AMERICORD shall promptly appoint from its panel of adjudicators the person to serve as Chair of the Panel, and notify parties of such appointment. Section 4.3 Rejection of Appointment; Alternate Appointments Within seven (7) days of receiving from AMERICORD notice of the appointment of a single arbitrator or Chair of a tripartite panel, any party may reject for any reason or no reason the person so appointed. Within seven (7) of receiving a notice of rejection, AMERICORD shall appoint another arbitrator from its panel. Within seven (7) days of receiving the second notice of appointment, any party may reject the appointee for "cause." "Cause" shall be limited to a good faith belief, supported by affidavit of the attorney for the objecting party, that the appointee (a) has insufficient knowledge and experience in the substantive legal or technical area(s), as applicable, (b) has a conflict of interest which raises an unacceptable appearance of impropriety, or (c) lacks sufficient judicial demeanor to conduct a fair hearing. In the event the second appointee is rejected, within five (5) days of the second rejection, AMERICORD shall conduct with counsel, in person or by telephone, an administrative conference regarding the final method of selecting the arbitrator. If consensus on a method is not reached, the Chief Executive Officer of AMERICORD shall make the final decision regarding the selection of the single arbitrator or Chair. The parties shall then either proceed in accordance with such decision or, at the option of any party, the parties shall apply to the Fourth Judicial District Court, County of Hennepin, State of Minnesota (or the equivalent trial court for the jurisdiction in which the arbitration is to be venued if not in the State of Minnesota) for the appointment of the arbitrator, pursuant to Section 3 of the Uniform Arbitration Act. Any arbitrator so appointed shall conduct the arbitration pursuant to these Rules. Section 4.4 Tripartite Panels; Appointment of Party Arbitrators In cases where the Tribunal is a tripartite panel to which each party appoints a Party Arbitrator, notice of such appointment shall be delivered to AMERICORD, with copies to the other parties, within 15 days of receiving from AMERICORD notice of the appointment of a Chair of the Panel. Any party who fails to appoint its Party Arbitrator within the time permitted shall be deemed to authorize AMERICORD to make such appointment from its Panel of Adjudicators. The grounds and procedures for rejection of an AMERICORD-appointed Party Arbitrator shall be identical to those set forth in Section 4.3 of these Rules. Section 4.5 Tripartite Panels; Appointment of Associate Arbitrators In cases where the parties have agreed to use a Tripartite Panel where the two arbitrators other than the Chair are selected for their subject matter or technical expertise, AMERICORD will appoint such arbitrators, who will be referred to as Associate Arbitrators. The appointments shall be made from a pool of candidates which shall include lists submitted by each party of not more than five (5) persons for each area of expertise. The pool may also include not more than three (3) candidates for each area of expertise identified by and known to AMERICORD. Section 4.6 Rejection of Associate Arbitrators; Alternate Appointments Within seven (7) days of receiving from AMERICORD notice of the appointment of an Associate Arbitrator, the appointee may be rejected by any party only for cause, as defined in Section 4.3. In the event an appointee is so rejected, AMERICORD shall conduct, either in person or by telephone, an administrative conference, with counsel for the purpose of receiving input regarding the final method of selecting the arbitrator. If consensus is not reached, the Chief Executive Officer of AMERICORD shall make the final decision regarding the appointment of the Associate Arbitrator and shall make such appointment, provided, however, the person so appointed shall be selected from those individuals who comprised the original pool of candidates as set forth in Section 4.5 of these Rules. Section 4.7 Duties of Disclosure; Disqualification of Arbitrators Any person appointed as an arbitrator under any provision of these Rules shall make a timely written disclosure to AMERICORD, with copies to all parties, detailing any circumstances which could reasonably create doubt as to his or her impartiality or independence. Such circumstances include but are not limited to any interest in the outcome of the dispute to be arbitrated and any relationship, either past or present, with any party, its counsel, insurers or other representative or advisor or any principal witness. Any party may request the disqualification of an arbitrator because of such circumstances, whether disclosed or otherwise discovered. A request for disqualification shall be in the form of a notice to AMERICORD with copies to all arbitrators and parties. Such notice shall be given (a) within ten (10) days of receipt of the disclosure, or (b) upon discovery of information on which the request is based. An arbitrator whom a party has sought to disqualify under this Section 4.7 may be removed from the Tribunal by (a) the arbitrator's voluntary withdrawal or (b) a determination by AMERICORD, after discussion with counsel for the parties and the arbitrator(s) that it is in the best interests of the process for the arbitrator to be removed. An arbitrator's removal by either of these procedures does not imply that the asserted grounds for disqualification are valid. Section 4.8 Selection of Substitutes If an arbitrator becomes disqualified, resigns or for any reason can not or will not act, the procedures for appointment of a substitute arbitrator shall be identical to those set forth in Article 4.0, as applicable; provided however that in the case of a tripartite panel where one of the arbitrators ceases to act for any reason, the remaining arbitrators, in their discretion, may continue with the hearing and determine the controversy. Section 4.9 Contact With Tribunal From the time of notification of the appointment of the Tribunal until the conclusion of the arbitration, no party or party representative shall have ex parte contact with the Tribunal regarding any matter related to the arbitration. AMERICORD reserves the right to disqualify at any time an arbitrator where such ex parte contact reasonably creates a doubt as to the arbitrator's ability to serve with impartiality and independence. ARTICLE 5.0 JURISDICTION OF TRIBUNAL The Arbitration Tribunal shall have jurisdiction to hear and decide all matters within the scope of the applicable Agreement to Arbitrate. Section 5.1 Power of Tribunal The Arbitration Tribunal shall have the power to decide all challenges to its jurisdiction, including but not limited to those based on assertions that (a) the Pre-Dispute or Post-Dispute Agreement to Arbitrate is invalid, (b) the subject matter of a claim or counterclaim or the specific nature of the dispute is outside the scope of the applicable Agreement to Arbitrate or precluded by law from being subject to arbitration (c) the award exceeds the authority granted to the Tribunal by any applicable Agreement to Arbitrate (d) the award is not permitted by law or is preempted by court jurisdiction. Section 5.2 Challenges to Jurisdiction of Tribunal Any party who wishes to challenge in arbitration the jurisdiction of the Tribunal must do so not later than the time for delivery of the Response; or, in the case of a counterclaim, not later than the time for delivery of the response to the counterclaim; provided however that this section shall not apply to challenges to the arbitration award. Section 5.3 Rulings on Challenges to Jurisdiction The Tribunal may rule on challenges to its jurisdiction at any stage of the proceedings it deems appropriate. ARTICLE 6.0 SCHEDULING OF HEARING The arbitration shall be held at the time and place agreed upon by the parties and approved by the Tribunal and AMERICORD; if the parties have not agreed within a reasonable time, AMERICORD, in consultation with the Tribunal, will designate the time and location for the arbitration, giving consideration to the avoidance of unreasonable hardship for any party. Section 6.1 Notice AMERICORD shall notify the parties in writing of the time and place for the hearing not less than ten (10) days before the hearing, unless a shorter notice period has been mutually agreed. Appearance at the hearing waives such notice. Section 6.2 Postponement of Scheduled Hearing Upon the application supported by good cause of any party, upon the joint stipulation of all parties, or on its own initiative, the Tribunal may grant a postponement of the arbitration. ARTICLE 7.0 PRE-HEARING PROCEDURES Where the Tribunal consists of a tripartite panel, the Chair of the Panel may act as a single arbitrator for the purpose of pre-hearing procedures under these Rules. Section 7.1 Amendments to Claims, Counterclaims, Responses Parties may at any time during the course of the arbitration make application to the Tribunal for permission to amend Statements of Claim, Responses and Counterclaims, and such applications shall be liberally approved; provided, however, that the Tribunal has discretion to refuse any application the approval of which would result in an unreasonable delay in the proceedings or unfair prejudice to the other party. Section 7.2 Preliminary Conference As soon a practicable after the hearing is scheduled, the Tribunal will convene counsel for all parties at a Preliminary Conference for the purpose of reaching agreements and issuing rulings to most effectively structure the arbitration process. The Preliminary Conference will deal with such matters as (a) stipulations on agreed and disputed facts, admissions, and other matters to narrow and clarify the scope of the dispute; (b) identification and authentication of exhibits to be offered at the hearing; (c) identification of witnesses to be called to testify at the hearing; qualification of expert witnesses; sequestration of witnesses; (d) rulings on Applications for Orders to Produce and Deliver pursuant to Section 7.3 of these Rules, or other matters in the nature of discovery, such as agreements on the taking of depositions; (e) the order of proceeding and closing; approximate time allotments for each party's case in chief and rebuttal; (f) whether a written record of the proceedings should be made; (g) time frame for submission of pre-hearing memoranda and their general length and content; (h) whether the Tribunal intends to retain for its own guidance the services of a neutral expert; procedure and timing for the selection and payment of a neutral expert; (i) whether the Tribunal will view or inspect any site, equipment, machinery, goods, documents or other property, etc. at any time during the proceeding and the timing for such a view or inspection; (j) such other matters as the Tribunal may deem necessary or appropriate, including the advisability of referral to mediation or unassisted settlement negotiations. Section 7.3 Applications for Orders to Produce and Deliver At the Preliminary Conference or at any other time during the arbitration, any party may apply to the Tribunal for an Order to Produce and Deliver documents, materials or property upon which the party from whom production and delivery is sought appears to rely in support of its position, or which the party requesting production and delivery asserts is reasonably necessary to establish its position. The Tribunal may issue any such Order it deems appropriate, taking into account the extent to which he granting of any such Application would create an unreasonable hardship on or unfairly prejudice any party or unreasonably delay the arbitration proceedings. The Tribunal may include in Orders to Produce and Deliver provisions for the protection of confidential and proprietary information and property, trade secrets and other appropriate matters. Section 7.4 Depositions; Subpoenas Upon the application of any party, the Tribunal may order the production of a person for the taking of an oral deposition; provided however that the Tribunal shall so order only where it determines such a deposition to be essential to a party's pre-hearing preparation. The Tribunal may issue subpoenas for the attendance of witnesses and for the production at the hearing of relevant books, records, documents and other evidence. Subpoenas so issued shall be served, and upon application to the court by a party or the Tribunal, enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action. Section 7.5 Applications for Orders to Reduce or Narrow Issues At the Preliminary Conference or at any other time during the arbitration, any party may make an Application to the Tribunal for an Order to Reduce or Narrow Issues on grounds including but not limited to the non-existence of any genuine issue of material fact, the failure to state a claim within the scope of the applicable Agreement to Arbitrate or the lack of qualification of a proposed expert witness. The Tribunal will only accept such application when it deems the potential exists for substantially reducing the length of the arbitration were the application to be granted. The Tribunal may refuse or permit briefing of the issues involved in the Application on such terms and conditions established by it. Section 7.6 Interim Measures of Protection The Tribunal may, at the request of any party, issue such orders as it deems appropriate for the interim protection or preservation of property, evidence or assets or for the sale of perishable goods. The Tribunal may at its discretion require the furnishing of security for the costs of such measures. A request to a court of competent jurisdiction by any party for substantially similar interim measures arising out of the same subject matter as that of the arbitration shall not be deemed inconsistent with any applicable Agreement to Arbitrate. ARTICLE 8.0 CONDUCT OF HEARINGS The Tribunal shall have the authority to conduct the hearing as it deems appropriate, including but not limited to the determination of the order of proceeding, the admissibility and weight of evidence, the administration of oaths to and manner of examining witnesses, the sequestration of witnesses, time limits on all or any portion of any party's case presentation and the adjournment, postponement and continuance of the proceedings. Unless otherwise agreed by the parties, the Tribunal and AMERICORD, the hearing shall be held in private, attended only by counsel, parties or party representatives, witnesses and others reasonably necessary to the proceeding, if any. Section 8.1 Witnesses The Tribunal shall require all witnesses to testify under oath.
Section 8.2 Evidence The Tribunal shall not be required to conform to the rules of evidence generally applicable in judicial proceedings; provided however that the Tribunal shall apply the rules relating to work product exclusion and attorney-client privilege. Section 8.3 Ex Parte Hearings In exceptional cases, where a party has been duly notified and has failed to seek a postponement, the Tribunal may, at its discretion, proceed with the arbitration hearing and, where appropriate, enter an award against the absent party; provided however that the Tribunal may enter a default award only where the party who seeks the award has presented evidence of sufficient weight and persuasiveness to support the award. Section 8.4 Management and Direction An arbitration utilizing a tripartite panel shall be managed and directed by the Chair of the Panel, in consultation with the Party or Associate Arbitrators. In the event all members of a tripartite panel cannot agree on a matter related to the conduct of the hearing, the matter shall be decided by a majority vote of the Panel. Section 8.5 Neutral Experts The Tribunal may engage the services of a neutral expert for the purpose of providing interpretations and opinions regarding technical or otherwise specialized facts and issues. Such experts' terms of reference will be those established in writing by the Tribunal. Experts shall have access to any documents and goods which have been made a part of the proceedings and shall have the authority to request other information deemed relevant by the Tribunal. The Tribunal may at its discretion require the expert's opinion to be in writing. Experts may called to testify at the hearing and may be examined in the same manner as witnesses by counsel for the parties. The Tribunal will assess fees and expenses for the services of its neutral experts as provided in Article 10. Section 8.6 Viewing, Inspection or Investigation At any time during the arbitration, the Tribunal may view, inspect or investigate any site, equipment, machinery, goods, documents or other property. Section 8.7 Closure of Hearing At the conclusion of all parties' presentations, including closing statements, if any, the Tribunal shall inquire as to whether there are any further submissions or statements on behalf of any party, and upon receiving negative responses, will close the hearing.
Section 8.8 Pre-Award Termination of Proceedings If the dispute is resolved pursuant to a settlement agreement entered into by the parties after the close of the hearing but before the issuance of the award, the Tribunal may order the proceedings terminated or may issue an award noting only that terms were agreed, and giving no other reasoning for the award. If for any other reason it becomes impossible or unnecessary for the proceedings to continue, the Tribunal may notify the parties of its intention to terminate the arbitration and issue an order doing so unless a party raises an objection the Tribunal considers well-founded. Section 8.9 Post-Hearing Briefs The Tribunal shall accept post-hearing briefs on terms and conditions established by it, giving due consideration to time requirements for preparation and delivery of transcripts of the proceedings, if any, unless all parties agree to waive briefs. Reply briefs will be permitted only in circumstances the Tribunal considers exceptional. Section 8.10 Reopening of Hearing On the application of a party or on its own initiative, the Tribunal may reopen the hearing in circumstances so exceptional that the principles of fundamental fairness require such action.
ARTICLE 9.0 THE AWARD It is the intent of these rules that the award shall be based on the principles of law and equity, including any statutes of limitation or repose of the jurisdiction specified in the applicable Agreement to Arbitrate, as well as any generally accepted industry customs and practices applicable to the dispute. If no jurisdiction's law is specified, the Tribunal shall base the award on the law it deems appropriate, applying what it considers the applicable conflict of laws rules. Section 9.1 Types of Award; Scope of Award In addition to final awards, the Tribunal may issue interim, interlocutory or partial awards. Subject to the provisions of the applicable Agreement to Arbitrate, the Tribunal may grant any relief it deems appropriate; provided however that punitive damages may be awarded only where the parties have previously so agreed. The award shall allocate arbitration expenses and arbitration fees as provided in Article 10. Section 9.2 Form of Award; Dissenting Opinion The award issued by the Tribunal shall be in writing, signed by the Tribunal and shall be accompanied by a separate, succinct statement of the reasoning upon which it is based, unless the parties have directed that no reasoning is to be given. Statements of reasoning are for the parties' information only and do not constitute a part of the award. In arbitrations that utilize a Tripartite Panel, the award shall be that of a majority of the Panel and shall be signed by the members of the Panel who join in the award. A member who does not join in the award may, at his or her discretion, prepare and sign a dissenting opinion, which also may be accompanied by a statement of reasoning. Section 9.3 Time of Award The award and dissenting opinion, if any, shall be delivered to AMERICORD not later than thirty (30) days after receipt of post-hearing briefs, or if briefs are not submitted, not later than thirty (30) days after the close of the hearing; provided however that the parties may agree to other time limits, or the Tribunal may deem that exceptional circumstances require it to establish a different length of time, and so advise the parties by the close of the hearing. Upon receipt of the award from the Tribunal, AMERICORD shall promptly deliver copies to the parties. Section 9.4 Correction of Award Within ten (10) days of delivery of the award to the parties, should any party, the Tribunal, or AMERICORD discover an evident clerical, computational, descriptive or other similar error in the award, such discovery shall be communicated to the other parties and corrected as soon as practicable. Such corrections shall be in writing and shall become part of the award. Section 9.5 Finality of Award; Implementation of Award The award becomes final at the expiration of the period for correction set forth in Section 9.4, and the parties shall take steps to implement the award as soon as practicable and without delay. Section 9.6 Entry of Judgment Pursuant to the applicable law of the jurisdiction, by participating in an arbitration under these rules, the parties are deemed to have consented to the entry of a judgment on any arbitration award in a court of competent jurisdiction Section 9.7 Interpretation of Award Within ten (10) days of receipt of the award, any party, with notice to the others, may direct to AMERICORD a written request for an interpretation of the award by the Tribunal. AMERICORD shall promptly transmit the request to the Tribunal. Such post-award interpretations will be made at the discretion of the Tribunal. Any such interpretation shall be in writing and transmitted to AMERICORD by the Tribunal not later than thirty (30) days after its receipt of the request from AMERICORD. AMERICORD shall promptly deliver the interpretation to the parties. Section 9.8 Omitted Awards In the event the award has failed to include all claims or counterclaims asserted in the arbitration, within ten (10) days of its receipt of such award, any party may direct to AMERICORD a request that the tribunal issue additional awards on such omitted claims or counterclaims. AMERICORD shall promptly notify the Tribunal of the request. The Tribunal will issue such additional awards if it determines that the request is meritorious and that it can do so without reopening the hearing or receiving additional evidence. Such additional awards shall be delivered to AMERICORD not later than thirty (30) days after the Tribunal's receipt of the request from AMERICORD. AMERICORD shall promptly deliver the additional awards to the parties. Section 9.9 Reconsideration of Award The Tribunal shall not entertain any request for reconsideration of an issued award. ARTICLE 10.0 FEES The Tribunal shall include in the award the assessment or allocation of fees and expenses as provided in the applicable Agreement to Arbitrate, or any other agreement of the parties. If no agreement regarding fees and expenses exists, the award shall assess or allocate fees and expenses as it determines is fair and equitable under all the facts and circumstances; provided however, that fees and expenses incurred by one party may not be assessed in whole or in part against another party unless such assessment was requested during the arbitration, and, provided further, that absent good reasons for the Tribunal to do otherwise, each party will bear its own fees and expenses, including the expenses incurred in connection with a Party Arbitrator. Section 10.1 Definitions As used in these rules, "fees" means the administrative fees and fees for the professional services of the Tribunal charged by AMERICORD pursuant to its published fee schedule in effect at the time the arbitration was commenced. "Expenses" means (1) travel expenses incurred by the Tribunal in connection with its services for transportation, lodging, meals and other reasonable and necessary expenses; (2) expenses incurred in connection with the Tribunal's engagement of an expert under Section 8.5 including such expert's professional fees and reasonable travel expenses; expenses incurred by the parties in connection with obtaining the testimony of witnesses; attorneys' fees and experts' fees; expenses incurred in connection with the making of a record of the proceedings; expenses incurred for conference and hearing facilities and services. Section 10.2 Deposits AMERICORD may, prior to or during the proceeding, require that each party deposit equal amounts as an advance against the payment of fees and expenses to be incurred by AMERICORD. ARTICLE 11.0 MISCELLANEOUS Section 11.1 Representation by Counsel Parties must be represented by counsel in the arbitration proceedings. Section 11.2 Confidentiality The arbitration proceedings and the award shall be treated as confidential by AMERICORD, the Tribunal, the parties and their representatives, unless otherwise agreed, except to the extent disclosure is necessary in connection with any judicial proceedings to enforce or vacate the award, or as otherwise required by law. Section 11.3 Failure to Comply With Rules, Order of Tribunal or Interim Award In the event a party fails to comply with these rules, the Tribunal shall have the power and authority to issue such orders as it deems appropriate to require compliance or sanction the non-compliant party, including the entry of a default award on the same terms and conditions set forth in Section 8.3 of these rules. Section 11.4 Settlement Negotiation; Mediation In the event the parties elect to act on the suggestion of any party or of the Tribunal that settlement negotiations be commenced, the Tribunal shall reasonably accommodate the parties in such effort; provided however, that the Tribunal will not act as a mediator of settlement negotiations, but upon joint request of the parties, AMERICORD will appoint a mediator from its panel of mediators to conduct a mediation in accordance with its basic model or any modification thereof agreed to by the parties and AMERICORD. The arbitration will be suspended during the pendency of unassisted or mediated settlement negotiations and shall be resumed if an impasse occurs. In the event the dispute is settled by either process, the Tribunal shall issue an award pursuant to Section 8.8. Section 11.5 Exclusion of Liability Neither AMERICORD, its officers, agents, employees, neutral experts or any member of any Tribunal, shall be liable to any party for any act or omission in connection with any arbitration commenced under these Rules. The parties agree that the Tribunal, its neutral expert or any AMERICORD employee shall not be called as witnesses in any litigation or other proceeding related to the subject matter of the arbitration. The parties shall defend at their joint and several expense, the Tribunal, its neutral experts, AMERICORD and its employees from any subpoenas arising from the arbitration. Section 11.6 Waiver Any party who knows that a provision or requirement of these Rules has not been complied with and yet continues to participate without objection shall be deemed to have waived the right to object to such noncompliance.
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