Table of Contents

 

 

Introduction and General Rules

1.0       Application of rules      

2.0       Request for arbitration 

3.0       Delivery of communication       

4.0       Time limits       

5.0       Representation 

 

Arbitrator/Panel Rules

6.0       Panel of arbitrators      

7.0       Appointment of arbitrators       

8.0       Arbitrator disclosure, challenges, and replacement procedures

9.0       Communication with the arbitrator        

10.0     Interpretation of rules/right to discontinue arbitration

 

Rules of the Arbitration Proceeding

11.0     Pre-hearing conference

12.0     Discovery        

13.0     Subpoenas      

14.0     Hearing schedule         

15.0     Hearing on documents 

16.0     Adjournments  

17.0     Hearing procedures     

18.0     Witnesses        

19.0     Inspections      

20.0     Closing of the hearing

21.0     Post-hearing admission of evidence      

22.0     The award       

23.0     Correcting an award/limited right of review       

24.0     Record of case

25.0     Settlement       

26.0     Mediation        

27.0     Non-compliance with rules       

28.0     Waiver

29.0     Ex-parte hearing          

30.0     Confidentiality  

31.0     Applications for judicial relief   

32.0     Immunity of the BBB and arbitrator      

33.0     Costs  

34.0     Commercial arbitration fees      

 

 

 

 

 

COMMERCIAL Resolutions

 

Introduction and General Rules

 

1.0       APPLICATION OF RULES

 

Where Parties agree to arbitration under the Better Business Bureau (“BBB”) Commercial Resolutions (“Rules”) in a contract provision or other arbitration agreement, the rules that apply to the proceedings are those in effect at the time the arbitration is initiated.  Parties may agree in writing to modify these rules at any time before or during the proceeding.  These Rules, and any modifications thereof, shall govern the arbitration process except where they are found to be in conflict with Article 75 of the New York State Civil Practice Laws and Rules or the Federal Arbitration Act (whichever applies), or other applicable law.

 1.1      Severability

a.         If any provision of these Rules is determined to be in conflict with any mandatory applicable law, that specific provision will not be in effect but all other provisions

of the Rules remain in full force and effect.

 

2.0       REQUEST FOR ARBITRATION

 

2.1       Demand For Arbitration

a.         In cases where a contract provision specifies arbitration through the BBB Commercial Resolutions Program, the claimant shall provide to the respondent, within the time period specified in the contract between the Parties, if any, a Demand for Arbitration (form to be provided by the BBB).

b.         The claimant shall provide to the BBB, one copy of the Demand for Arbitration, one copy of the arbitration provision of the contract, and the required administrative fee in accordance with the fee schedule in effect at the time of filing. 

c.         The BBB shall confirm receipt of the Demand for Arbitration in writing to all Parties.

d.         The respondent may file a defense or counterclaim, within twenty (20) days of receipt of the Demand for Arbitration unless otherwise specified in the contract between the Parties.  No more than one ten (10) day extension to file a counterclaim shall be granted by the BBB.

e.         The complainant may file a reply to a counterclaim within twenty (20) days of receipt of the counterclaim unless otherwise specified in a the contract between the Parties.

f.          In the absence of a defense or reply, all claims and counterclaims shall be presumed denied.

g.         New or amended claims or counterclaims within the scope of the arbitration contract provision may be entered at any time prior to the appointment of the Arbitrator and thereafter only by the Arbitrator’s consent. Answering statements or replies shall be delivered within twenty (20) days after receipt of the new or amended claim or counterclaim. 

h.         Failure to respond to the Demand for Arbitration or any counterclaims shall be deemed a denial of all claims asserted and shall not serve to delay the arbitration process.

2.2       Submission to Arbitration

a.         Where a contract between the Parties specifies arbitration without designation of the BBB as the Arbitration administrator, or in any other case where the Parties agree to arbitration under these Rules, the claimant shall provide to the respondent within the time period specified in their contract, if any, a Submission to Arbitration (form to be provided by the BBB).

b.         The claimant shall submit to the BBB one copy of the Submission to Arbitration signed by both Parties, one copy of the arbitration provision of the contract between the Parties, if any, and the required administrative fee in accordance with the fee schedule in effect at the time of filing.

c.         The BBB shall confirm receipt of the Submission to Arbitration in writing to all Parties.

d.         The respondent may file a defense or counterclaim within twenty (20) days of receipt of the Submission to Arbitration unless otherwise specified in the contract.  No more than one ten (10) day extension to file a counterclaim shall be granted by the Arbitrator or the BBB.

e.         The claimant may file a reply to a counterclaim within twenty (20) days of receipt of the counterclaim unless otherwise specified in the contract between the Parties.

f.          In the absence of a defense or reply, all claims and counterclaims shall be presumed denied.

g.         New or amended claims or counterclaims within the scope of the contract provision or Submission to Arbitration may be entered at any time prior to the appointment of the Arbitrator and thereafter only by the Arbitrator’s consent.

 

3.0       DELIVERY OF COMMUNICATIONS

 

3.1       All required communications shall be in writing and delivered to a Party’s designated legal representative, or to the Party if they do not have a designated legal representative, at the address most recently provided by the designated legal representative or the Party and be done through a means that provides confirmation

of delivery.

 

4.0       TIME LIMITS

 

4.1       In order to manage the hearing process in a fair and expeditious manner, the Arbitrator shall have the authority to set time limits for completion of any phase of the

proceeding as s/he deems necessary in addition to those explicitly set forth in these Rules.

4.2       N.B., Days specified under these

Rules shall mean calendar days unless otherwise indicated. Time periods established by the Arbitrator, the BBB or are otherwise specified in these Rules shall commence on

the first day following the day a communication is received or other triggering event occurs.

 

 

 

5.0       REPRESENTATION

 

5.1       Parties may be represented by an attorney, or have the assistance of a person of their choosing throughout the arbitration process.  Parties shall give written notice to each other and to the BBB of the name, address, telephone number and function of such persons at least eight (8) days prior to the date of the first scheduled hearing.  

 

Arbitrator/Panel Rules

 

6.0       PANEL OF ARBITRATORS

 

6.1       The BBB maintains a panel of qualified Arbitrators.  The BBB will utilize private, non-affiliated Arbitrators if all Parties so request or if necessary to ensure that the Parties obtain an Arbitrator with the experience and skill necessary to hear and decide their case.  Arbitrators shall be appointed to cases as outlined in these rules.

 

7.0       APPOINTMENT OF ARBITRATOR(S)

 

Unless otherwise specified in the contract between the Parties, required by law, or

by mutual agreement of the Parties, appointment of the Arbitrator shall take place as follows:

7.1       General Selection Procedure (Claims of $10,000-$499,000)

a.         The BBB shall provide both Parties with the names, and biographies of three or more Arbitrators chosen from the BBB panel of Arbitrators.  This may be done by mail, by telephone facsimile, or electronic mail. 

b.         The Parties shall have the right to strike the name of any Arbitrator from the list submitted.

c.         An Arbitrator shall be deemed acceptable to the Parties if neither Party has stricken that Arbitrator’s name from the list.

d.         The BBB shall appoint an Arbitrator who is considered acceptable as per 7.1c above.

e.         If the Parties fail to arrive at a mutual choice for an Arbitrator, the BBB will send them a second list for Arbitrator selection.  If the Parties fail to arrive at a mutual choice of an Arbitrator from the second list, The BBB shall administratively appoint an Arbitrator to hear the case.

f.          Each Party shall submit to the BBB, their Arbitrator selection within ten (10) days after receipt of the list of Arbitrators.  Submission may be done by mail, telephone facsimile, or electronic mail.  If the list is not returned to the BBB within this time period, the BBB will determine that all names listed are satisfactory to that Party and the BBB shall select an Arbitrator based on the information received.  In the event that neither Party returns an Arbitrator selection list, the BBB will determine that all names listed are satisfactory to all Parties and the BBB shall select the Arbitrator.

g.         The BBB shall mail to the Arbitrator, a Notice of Appointment, to be signed

and returned within ten (10) days of receipt.

h.         If the Arbitrator accepts appointment, the Parties shall receive a copy of the Notice of Appointment.

i.          Once Parties have been notified of the selected Arbitrator, any change of the selected Arbitrator must be approved by the Parties or the selection process must be conducted again. 

7.2       General Selection Procedures (Claims over $500,000)

a.         In cases over $500,000, a panel of three (3) or more Arbitrators will be selected under the General Selection Procedure unless otherwise agreed upon by the Parties.

b.         If a panel of more than three (3) Arbitrators is selected, it must be with the written consent of all Parties to the dispute.

c.         An odd number of Arbitrators must be selected for any such panel.

d.         Determinations by the panel shall be by majority decision.

e.         The BBB will select the Chairperson of any such panel. The Chairperson’s duties and authority shall be those that are normal and customary for such a position.

 

8.0       ARBITRATOR DISCLOSURE, CHALLENGES AND REPLACEMENT PROCEDURES

 

8.1       The Arbitrator shall sign an oath, pledging to make an impartial decision in the dispute submitted for arbitration.  The Arbitrator shall disclose to the Parties, any

circumstance existing or arising before or during the arbitration proceeding that might create a reasonable inference of conflict of interest such as personal, professional or financial relationships, or an interest in the outcome of the arbitration.  The BBB reserves

the right to reject or remove any Arbitrator for any reason that it believes will affect the

program’s credibility.

8.2       Any Party challenging an Arbitrator for reasons of conflict of interest

must do so in writing to the BBB no later than ten (10) days after the appointment of the Arbitrator or the Party becomes aware of the circumstances giving rise to the challenge. The notice must include specific reasons for the challenge.

8.3       If a Party challenges an Arbitrator for reasons of conflict of interest, the Arbitrator may voluntarily withdraw; or if the other Party agrees to the challenge the Arbitrator shall withdraw.  In all other cases, the BBB shall decide the challenge after providing the Arbitrator and the non-challenging Party with the opportunity to comment.

8.4       In the event of a successful challenge resulting in the voluntary or withdrawal, mandatory withdrawal, or BBB determination to remove an Arbitrator, the new Arbitrator shall be selected pursuant to the original selection procedures unless the Parties otherwise agree.

8.5       In the event an Arbitrator must be replaced for reasons other than a

challenge on conflict of interest (i.e., resignation, incapacity, death, et.al.), the new Arbitrator shall be selected pursuant to the original selection procedures unless the

Parties otherwise agree.

8.6       In the event that a vacancy occurs on an Arbitration panel of three (3) or more Arbitrators, the Parties, in writing, may agree to continue the case and have it heard by the remaining members of the panel.  In such a case, the majority number needed for the decision shall be the same as if the panel were complete.  Should a subsequent vacancy occur, a new panel of Arbitrators will be selected pursuant to the original selection

procedures and the case will be reheard in its entirety.

8.7       In the event that a vacancy occurs on an Arbitration panel of three (3) or more Arbitrators and the Parties do not agree to continue the case before the remaining members of the panel, a replacement Arbitrator will be selected pursuant to the original selection procedures.  If an official transcript of the proceeding exists, the replacement Arbitrator shall review that transcript and the proceeding will continue from the point of the vacancy.  If no official transcript exists, the majority of the panel Arbitrators shall determine the need, if any, to repeat all or part of the previous proceedings.

8.8       If a replacement Arbitrator is filling

the vacancy of an Arbitrator who was serving as chair of the Arbitration panel, a new chairperson of the panel will be selected by the BBB from the remaining panel members and the replacement Arbitrator will assume the position of a regular panel member.

8.9       In the event that a sole Arbitrator is removed for cause, withdraws, or is otherwise incapable of continuing to hear the case, a replacement Arbitrator will be selected pursuant to the original selection procedures and the case will be reheard in its entirety.

8.10     The BBB reserves the right to

remove any Arbitrator for any conflict, which it believes will affect the program’s credibility.

 

9.0       COMMUNICATION             WITH THE ARBITRATOR

 

9.1       Neither the Parties nor their representatives shall communicate in any way with the Arbitrator except at a hearing for which all Parties have received notice, or unless all other Parties are present or have given their written permission.  Any other communications with the Arbitrator shall be submitted through the BBB.

 

10.0     INTERPRETATION OF RULES/RIGHT TO DISCONTINUE ARBITRATION

 

10.1     The BBB reserves the right to make the final decision on procedural

questions relating to these Rules, on the scope of the agreements, on a consumer’s eligibility for arbitration, and on any other question concerning the application and interpretation of these Rules.

10.2     The BBB at all times reserves the right to discontinue administration of the arbitration process for any case(s) due to a conflict with any state/federal law or regulation, or due to the conduct of a Party.

 

Rules of the Arbitration Proceeding

 

11.0     PRE-HEARING CONFERENCE

 

11.1     In all cases, the Arbitrator and the BBB shall conduct a pre-hearing

conference with the Parties and/or their representatives either in person or by telephone.  By accepting these Commercial Rules, the Parties understand and agree that the pre-hearing conference shall be scheduled at the earliest possible time in order to expedite the process.  This conference will address administrative issues including but not limited to reconfirmation of the acceptance of the Arbitrator or Arbitration panel, verification of the completion of the signed Arbitrator’s oath, pre-hearing submissions such as detailed statements of claims, legal authority, and stipulations of facts or admissions; hearing timetables; discovery issues such as documents exchange, use of affidavits and/or depositions; identification of witnesses including experts and the need for on-site inspections; requests for rules modification and the possibility of mediation. 

11.2     The need for additional preliminary or other conferences shall be at the discretion of the Arbitrator.

 

12.0     DISCOVERY

 

12.1     In cases involving claims (and counter-claims) up to $49,999, discovery shall include basic documents only.

12.2     Basic documents shall include:

a.         The name, address and telephone number of each individual that the disclosing Party may use to support its claims or defenses and the nature of the information to be derived from such individuals;

b.         Copy of all documents, data compilations, or tangible items that are in the possession, custody, or control of the disclosing Party and that the disclosing Party may use to support its claims or defenses;

c.         A statement containing the amount of damages claimed by the disclosing Party, making available for inspection and copying the supporting documents on which the amount is based, including documents showing the nature and extent of claimed damages.

d.         The Parties shall complete the exchange of basic documents, and provide copies to the BBB, no later than sixty (60) days prior to the scheduled date of the arbitration hearing. 

e.         Any objection to a Party’s compliance with the duty to disclose basic documentary information will be deemed waived unless raised in writing to the serving Party within five (5) days of service. If any objection cannot be resolved by the Parties, the objecting Party must raise the objection in writing to the Arbitrator no later than fifteen (15) days from the service date of the basic documentary information or else the objection shall be deemed waived.

12.3     In cases involving claims (and counter-claims) from $50,000 to $99,999, discovery shall include basic documents and the exchange of interrogatories.

a.         Each Party may serve upon any other Party written interrogatories, not to exceed twenty-five (25) in number including all discrete subparts, which are to be answered by the Party served.

b.         Interrogatories shall be served upon a Party no later than forty-five (45) days prior to the scheduled date of the arbitration hearing.

c.         The Party served shall have twenty (20) days to respond to the interrogatories unless a written extension of time to respond is agreed to by the serving Party and approved by the Arbitrator.

d.         All interrogatories are to be answered fully and completely. Any objection to an interrogatory is to be made in writing to the serving Party within five (5) days of service of the objectionable interrogatory.  In the event that the objection cannot be resolved between the Parties, the objection shall be deemed waived unless the objecting Party submits the interrogatory and basis of the objection in writing to the Arbitrator, no later than fifteen (15) days after service of the interrogatory, for final resolution.

e.         Additional interrogatories may be granted on a conditional basis and at the sole discretion of the Arbitrator.

12.4     In cases involving claims (and counter-claims) over $100,000, discovery shall include basic documents, the exchange of interrogatories not to exceed 25 in number and the taking of oral depositions.

a.         Unless otherwise mutually agreed to in writing by the Parties, no more than two

depositions may be noticed by any Party to the arbitration;

b.         Depositions may be taken upon twenty (20) days notice to a Party. The notice shall state the date, time and place of the deposition and set forth the general scope of the inquiry to be made of the deponent;

c.         Depositions are to be conducted in the county within which the arbitration hearing is to be conducted unless otherwise agreed to by the Parties.

d.         A deponent may refuse to answer a question presented at a deposition only when necessary to preserve a privilege, or to enforce a limitation as may have been previously directed by a court of law;

e.         All depositions shall be completed no later than fifteen (15) days prior to the scheduled date of the arbitration hearing;

f.          Each Party noticing an oral deposition shall bear the expense and costs associated with the deposition, including the provision of

a testimonial transcript to the deposed Party. However, each Party shall bear their own travel and lodging expenses.

12.5     In all matters concerning discovery, the Arbitrator (or Chair of the Arbitration panel) shall have complete authority to modify, alter or amend the foregoing rules if in the Arbitrator’s sole discretion, such modification, alteration or amendment better serves the arbitration process.  The Arbitrator (or Chair of the Arbitration panel) shall have complete authority to decide any disputed issues related to discovery.

 

13.0     SUBPOENAS

 

13.1     At the request of a Party, the Arbitrator may issue subpoenas to compel witness testimony or the production of documentary evidence deemed important to a full and fair consideration of the dispute.  Subpoenas shall be sent in accordance with applicable law and the Party requesting the subpoena shall bear all costs in the issuance and

service of the subpoena.

 

14.0     HEARING SCHEDULE

 

14.1     Unless otherwise agreed upon by the Parties, the date[s], time, and location of the arbitration hearing shall be determined by the Arbitrator. The Arbitrator shall establish the hearing schedule with the Parties’ input provided during the pre-hearing conference or other pre-hearing communications and said schedule shall be adhered to firmly by the Parties.  The BBB shall send a Notice of Hearing to all participants at least eight (8) days in advance of the hearing.

14.2     Where it is necessary to hold more than one hearing day, hearings

shall be scheduled on consecutive business days whenever possible.  Arbitration proceedings may be scheduled for other than consecutive days if warranted. 

14.3     If the Parties agree, and the Arbitrator concurs, hearings may include weekend dates.

14.4     The Arbitrator shall make the final determination in all matters of scheduling days of hearing. 

14.5     In complex cases and after input from the Parties, the Arbitrator may assign, in advance, a set amount of time for the hearing and allocate a certain portion to each Party for their presentations. 

 

15.0     HEARING ON DOCUMENTS

 

15.1     If the arbitration is on documents only, all documents shall be submitted to the BBB no later than thirty (30) days from the date of the pre-hearing conference scheduling order.  The Arbitrator shall make an Award based on all documents submitted.  The Arbitrator shall render the Award within thirty (30) days of receipt of the documents by the Arbitrator or later if agreed to by the Parties.

 

16.0     ADJOURNMENTS

 

16.1     A request to adjourn or postpone a scheduled hearing date must be made at least two (2) business days prior to the scheduled hearing date. The Arbitrator may grant the request upon good cause shown. Any adjournment request made without the required notice is subject to approval of the Arbitrator and a $100.00 rescheduling fee. A Party requesting more than one adjournment during the arbitration proceeding may be subject to a $100.00 rescheduling fee even where such requests are within the required notice period and are approved by the Arbitrator.  Any determinations regarding the assessment of rescheduling fees shall be made by the BBB.

16.2     A late postponement or cancellation fee may be charged by the Arbitrator, for postponements or cancellations of scheduled hearings, if the request for postponement or cancellation falls within the Arbitrator’s stated late cancellation period.  Generally, the Party requesting the postponement bears the cost of the fee in requests for postponement situations.  If the Parties should decide to cancel the hearing altogether, and the notice falls within the Arbitrator’s late cancellation period, both Parties generally share the cost of the fee.  The Arbitrator may assess and proportion any late fees as the Arbitrator deems reasonable and appropriate for the situation.

 

17.0     HEARING PROCEDURES

 

17.1     Unless the Parties agree to a hearing on documents, the Arbitrator shall hold a hearing for the presentation of evidence and oral arguments.  The Arbitrator shall have the authority to set time limits for any and all phases of case presentation.

17.2     The Arbitrator shall take an oath of office pledging to preside over the arbitration impartially and fairly and may require that all witnesses testify under oath.

17.3     The Arbitrator shall determine the order of and manner in which the Parties may present their cases.  In most cases, each Party will make a presentation of its case, as well as present any evidence in support of its case in written and/or oral form.  Each Party may also question the other side, their witnesses, and their evidence presented.  After all Parties have presented their case, each will be given the opportunity to make a closing statement. 

17.4     Strict adherence to the formal rules of evidence does not apply in Arbitration except that the Arbitrator shall employ principles of attorney-client privilege and work product immunity.  The Arbitrator will determine any questions of evidence appropriateness or admissibility.  All evidence shall be presented in the presence of all Parties and Arbitrators, except in the instance of the ex parte absence of a Party or where a Party has waived the right to be present.

17.5     The Arbitrator shall have the authority to limit the presentation of evidence he/she deems to be repetitious or irrelevant.

17.6     The Arbitrator shall determine the weight of any evidence offered.

17.7     The Arbitrator shall have the authority to ask questions or, upon a motion from a Party, direct the production of evidence that was not originally submitted.

 

18.0     WITNESSES

 

18.1     The Arbitrator shall determine the manner in which witnesses are examined and may exclude witnesses from the hearing during the examination of other witnesses.

18.2     All Parties may provide their own experts to serve as witnesses for their case at their own expense. If an expert is to be called as a witness, the Party calling the expert shall be required to provide the other Party and the Arbitrator with a summary of the expert’s qualifications and the nature of their testimony at least two (2) weeks in advance of the Arbitration hearing date.

18.3     With the Parties’ consent, a neutral expert may be appointed by the Arbitrator to conduct an independent investigation to clarify or avoid substantially contradictory opinions of multiple, Party appointed experts.  If a neutral expert is appointed, the Parties shall have the right to cross-examine the expert’s testimony or comment upon any report issued.  The normal and customary costs associated with such neutral expert investigation and testimony shall be borne equally by the Parties.

18.4     A written statement, in affidavit or deposition form, of any witness who is unable to attend the hearing may be presented. The Arbitrator shall give said statements the weight that s/he deems appropriate. Copies of the written statement must be provided for the other Party at least five (5) days prior to the arbitration for use in the other Party’s response.

18.5     In extenuating circumstances, a witness statement may be admitted without prior notice.  Whether to allow or deny such proposed submissions shall be left to the

discretion of the Arbitrator.

18.6     Parties may request a reasonable time frame in which to respond to a written statement or document provided by the other Party.  It shall be left to the discretion of the Arbitrator whether to grant such a request and the amount of time in which the Party can respond.

 

19.0     INSPECTIONS

 

19.1     Any Party may request an on site inspection or investigation in connection with the controversy subject to arbitration.  The Parties shall have the right to be present at any inspection or investigation but may waive that right upon written notice to the BBB prior to the scheduled inspection.

19.2     Whenever possible, the inspection or investigation will be performed as part of the hearing; otherwise, the Arbitrator will schedule it for a another date with all Parties receiving at least ten (10) days notice unless such notice is waived by all Parties.  The Arbitrator shall rule on any objection concerning the inspection or investigation.

 

20.0     CLOSING OF THE HEARING

 

20.1     The Arbitrator shall upon hearing all witnesses and receiving all evidence, declare the hearing closed unless Section 21.2 below applies.

20.2     If briefs are to be filed, the hearing shall be declared closed as of the

date the Arbitrator receives the briefs from BBB.

21.0     POST-HEARING ADMISSION OF EVIDENCE

21.1     After a hearing has closed, there generally will be no further submissions of evidence allowed.

21.2     One exception might be where a Party has raised the issue of a post-hearing submission of evidence during the Arbitration hearing and it has been determined by the Arbitrator, after hearing from all Parties, that the post-hearing submission will be allowed.  The Arbitrator will determine the manner and timeframe for the submission of such evidence and will also determine the manner and timeframe for the other Party to respond to that evidence.

21.3     Under very rare and extraordinary circumstances there may arise a situation where a Party might seek submission of post-hearing evidence that could not have been anticipated, discussed, and determined during the Arbitration hearing.  Should such a situation arise under these strict conditions, a Party would send the BBB a request for the submission of post-hearing evidence, the evidence that it wished to submit, and a detailed explanation of the facts and reasons why the evidence could only be submitted post-hearing.  The BBB will provide the other Party with the information submitted and set a time limit for their response.  Upon receipt of the response (if any), the BBB will forward the information contained in the post-hearing request and response to the Arbitrator for

consideration and determination.

21.4     In any issue of post-hearing submission of evidence, the Arbitrator will have sole discretion to determine whether the evidence will be heard, all conditions under which such evidence will be considered, and all conditions under which the other Party may respond.

21.5     After an Award has been made, no further arguments or evidence may be presented.  This will include newly discovered evidence or evidence not available at the time of the hearing.

 

22.0     THE AWARD

 

22.1     The Award of the Arbitrator or Arbitration panel shall be by a preponderance of the evidence standard as specified in NYS 75 CPLR and/or the Federal Arbitration Act.  If the Parties wish that the Arbitrator or Arbitration Panel render an Award in accordance with certain standards, such as substantive law of a particular state, accepted norms within a particular industry or other technical requirements, it should be so stated in their agreement.

22.2     All Parties will receive a written Award signed by the Arbitrator. 

In cases where there is a panel of three (3) or more Arbitrators, the Award will be signed by at least a majority.  Unless otherwise agreed upon, Parties will receive an Award with reasoned opinion. 

22.3     Scope of Award

a.         An arbitrator may grant any remedy or relief that the Arbitrator deems just and equitable and within the scope of the agreement of the Parties.  Remedy or relief awarded may include, but not be limited to, specific performance of a contract.

b.         Punitive damages shall not be awarded by the Arbitrator unless all Parties have requested such an Award or the Arbitration agreement permits it.

c.         Attorneys fees associated with the arbitration may be included in the Award if the Parties agree and if such an Award is authorized by law in a civil action involving the same claim. 

d.         Unless the Parties otherwise agree, the Arbitrator may allocate fees, costs or other expenses among the Parties in his Award.  This shall include but is not limited to travel and other expenses of the Arbitrator.

22.4     Interim Awards

a.         If an Award requires an action be performed, the Arbitrator shall issue an Interim Award.  In such a case, the Arbitrator shall retain jurisdiction over the execution

of the Award until the actions are satisfactorily completed.  All decisions directing repairs

shall be Interim Awards.  If an Award is for monetary compensation only, there shall not be an Interim Award rendered.

b.         In cases where an Interim Award has been rendered, the time for performance is deemed to be commenced as of the date the decision is received by the Party ordered to perform.

c.         If a Party notifies the BBB within the time frame designated by the Arbitrator, that performance ordered was not completed or completed unsatisfactorily, the

BBB shall notify the other Party.  The other Party will have ten (10) days, from notification by BBB, to respond in writing to the BBB regarding the claim of non-compliance.  If the Party fails to respond within the 10 day period, the BBB will forward the complaint and non-response to the Arbitrator.  The Arbitrator shall have thirty (30) days from the date the Arbitrator receives the complaint for non-compliance and response from the BBB in which to render a Final Award.

d.         The Arbitrator may set a further hearing to receive evidence. 

If a further hearing is called by the Arbitrator, the 30 day timeline for the issuance of the final Award shall begin at the close of the hearing.

e.         Upon the Arbitrator’s request, the Parties may extend the Award period for special circumstances.

f.          The BBB will mail each Party a copy of the Arbitrator’s Award. (The Award will not be divulged to any Party in total or in part except by mail service to each Party).

22.5     Time

a.         The Arbitrator shall render their Award within thirty (30) days of the close of the hearing and will forward the original copy of the Award to the BBB for distribution to the Parties.

 

23.0     CORRECTING AN AWARD/LIMITED RIGHT OF REVIEW

 

23.1     The arbitration award shall be final and binding upon the Parties except to the extent that a valid request for modification of an Award as allowed under New York State Civil Practice Laws and Rules or the Federal Arbitration Act has been submitted.  A request for modification, under provisions of the New York State Civil Practice Laws and Rules, shall follow these guidelines:

3.2       Within twenty (20) days after receipt of the Award, either Party may, upon notice to the other, request through the BBB that the Arbitrator address any of the matters listed above. 

23.3     The Party not proposing the request for modification of the Award must, within ten (10) days from the receipt of the notice for modification, state in writing any objections they have to the request for modification of the Award.  The Party response shall be sent to the other Party and the BBB. 

23.4     The BBB will transmit both the request for modification and the response, if any, to the Arbitrator for a determination.  The Arbitrator shall have thirty (30) days from receipt of the request and response from the BBB in which to rule on

the request for modification of the Award.  The BBB or the Arbitrator shall have the authority to initiate the process under this rule if either or both determine that it is necessary.

23.5     If the Arbitrator deems valid a request to correct, interpret or

render an additional award, any time period given in the award for performance by either Party shall be suspended until the Arbitrator rules upon the request.  

 

Miscellaneous Rules

 

24.0     RECORD OF CASE

 

24.1     The BBB shall maintain basic file information on the arbitration for one year or longer if required by law.  This record will include witnesses’ names, documents presented as evidence at the hearing and the Award.  Copies of this and other official arbitration forms will be provided to either Party upon request.  A reasonable copying fee may be charged.

24.2     In the absence of an official transcript of the Arbitration hearing, the notes of the Arbitrator shall constitute the official record for purposes of determining the Award.  The Arbitrator’s notes are not subject to review or subpoena by the Parties during the course of the Arbitration hearing or in any subsequent proceeding.

24.3     Parties may agree that they want a transcript of the hearing and may arrange for such and share the expenses as they see fit.  Any transcript shall be taken by a duly certified and recognized court reporter.  The Parties must notify the BBB of this decision no later than five (5) days prior to the scheduled hearing date.  A copy of the transcript will be provided to the Arbitrator at the Parties’ expense.  This transcript shall become the official record of the hearing.

24.4     In the absence of agreement by both Parties, an individual Party may request that a transcript of the hearing be made.  If the other Party refuses to agree to a transcript and the resulting cost, the Party initiating the request shall assume the total cost for the production of the transcript.  The initiating Party shall provide for a duly certified and recognized court reporter and shall provide the other side and the Arbitrator with a copy

of the transcript at no cost to them.  The BBB and the other Party must be notified of this decision no later than five (5) days prior to the scheduled hearing date.  This transcript shall become the official record of the hearing for the purposes of determining the Award.

24.5     The Parties are not permitted to record the hearing by any other means or medium other than the methods stated above.

 

25.0     SETTLEMENT

 

25.1     The Parties may engage in voluntary settlement discussions at any time during the arbitration proceedings. If the Parties reach a settlement prior to commencement of the arbitration hearing any scheduled hearing will be cancelled and the case will be

considered closed by the BBB. 

25.2     If a settlement occurs during the hearing, the Arbitrator shall issue an Award Reflecting Settlement incorporating a Consent Agreement reflecting the terms of the settlement arrived at by the Parties if the Parties desire that be done.  If the Parties wish to draw up their own Settlement Agreement, the BBB must be provided with a copy of that Agreement in order for the BBB to close the case file.

25.3     If the settlement occurs after the closing of the hearing but prior to a decision being made, the Parties must contact the BBB in writing with the terms of the settlement. 

The Arbitrator shall render an Award Reflecting Settlement incorporating a Consent Agreement reflecting the terms of the settlement arrived at by the Parties if the Parties desire that be done.   If the Parties wish to draw up their own Settlement Agreement, the BBB must be provided with a copy of that Agreement in order for the BBB to close the case file.

 

26.0     MEDIATION

 

26.1     The BBB shall discuss the possibility of mediation with the Parties prior to the pre-hearing conference.  If the Parties agree to mediation at this, or any other time during the proceedings, the BBB shall appoint a mediator in accordance with the rules of the Commercial Mediation Program.  No additional administrative fee is required for initiation of mediation; however, the Parties will be responsible for payment of the mediator’s fee.

26.2     The Mediation process operates on a parallel track with the Arbitration so it does not interfere with the scheduled hearing dates or other matters related to the progress of

the Arbitration.  In this way, the Arbitration will not be delayed should the Parties fail to resolve the issue through Mediation.

 

 

27.0     NON-COMPLIANCE WITH  RULES

 

27.1     All objections on the basis of a failure to comply with the provisions or requirements of these Rules must be submitted in writing and notice given to the non-objecting Party and the BBB within five (5) days of the date of occurrence or of the day the objecting Party becomes aware of the occurrence.  

27.2     The BBB shall make an initial administrative decision as to whether the basis for the failure to comply objection may affect the independence, impartiality or overall fairness of the Arbitration process.  If the BBB decides in the affirmative or believes there is a substantial question, the BBB shall forward the matter to the Arbitrator or Arbitration Panel for a final determination.  If the Arbitrator or Arbitration Panel determines that there is non-compliance by a Party, the Arbitrator or Arbitration Panel may draw a negative inference against the offending Party.

 

28.0     WAIVER

 

28.1     A Party shall be deemed to have waived the right to object to a

failure to comply with any of these Rules if that Party neglects to timely state the objection and the reasons for the objection.

 

29.0     EX PARTE HEARING

 

29.1     The Arbitrator shall have the authority to proceed with the hearing in the absence of any Party or representative who fails to appear after receipt of notice in accordance with these Rules. 

29.2     Absence of a Party shall not result in a default decision against that Party.  The Party present shall be required to submit any evidence and testimony in support of its positions in the manner determined by the Arbitrator. 

29.3     Upon a showing of good and sufficient cause why an absent Party, duly notified, was unable to attend the scheduled Arbitration hearing and was unable to timely notify the BBB of the need for a postponement, the Arbitrator may grant a rehearing of the entire matter at a new date to be determined.  Alternatively to a rehearing of the entire matter, the Arbitrator may grant the absent Party an opportunity to present their case in a time and manner set by the Arbitrator.  If such an alternative method is employed, the Party who originally attended the hearing will be provided an opportunity to respond to any evidence or argument presented by the absent Party.

 

30.0     CONFIDENTIALITY

 

30.1     The BBB and Arbitrators under these Rules shall treat all matters relating

to arbitration proceedings, including the Award[s], as confidential except in connection with judicial review ancillary to the Arbitration or as required by law.  Parties with special concerns about the maintenance

of confidentiality should address them as issues for the Arbitrator to consider and resolve. 

 

31.0     APPLICATIONS FOR JUDICIAL RELIEF

 

31.1     Neither the Arbitrator[s] nor the BBB shall be deemed necessary Parties to any legal action concerning any matters relating to the arbitration and neither shall be subpoenaed therein. 

31.2     Judgment may be entered on the arbitration Award in any court having jurisdiction thereof. 

 

32.0     IMMUNITY OF BBB AND ARBITRATOR

 

32.1     Neither the BBB nor the Arbitrator[s] shall be liable for any act or omission in connection with the arbitration proceedings.

 

33.0     COSTS

 

33.1     Administrative fees of the BBB are based upon the amount of the claim or   counterclaim.  The administrative fee is due and payable at the time of filing of a claim or counterclaim. 

33.2     Each Arbitrator shall be compensated according to the rate agreed upon at the time of appointment plus reasonable expenses, if any.  The Parties shall deposit with the BBB an amount equal to the Arbitrator’s per diem rate of compensation prior to the initial pre-hearing conference or the first scheduled day of hearing whichever applies.  The Parties may be required to make supplemental deposits throughout the proceedings as directed by the Arbitrator(s) or the BBB.  The Arbitrator or the BBB may suspend arbitration proceedings for non-payment of any fees. 

33.3     The BBB and/or the Arbitrator shall have the right to suspend or terminate the arbitration proceedings for nonpayment of fees.  Prior to suspension or termination of arbitration, the BBB shall notify the Parties of any unpaid fees so that they may arrange for their payment within a time frame set by the BBB.

33.4     Once the arbitration proceedings have concluded, any unused portion of deposited administrative or Arbitrator fees shall be returned to the Parties as the BBB determines appropriate. 

 

34.0     COMMERCIAL ARBITRATION FEES

 

34.1     A current fee schedule shall be provided to all Parties at the time of filing.

34.2     A statement of Arbitrator’s fees and expenses will be included in the materials sent to the Parties as provided for in Section 7 above.