Fill and Sign the Arbitration under Chapter 11 of the North American Free Trade Form

Chapter 8 Arbitration Elliot E. Polebaum Fried Frank Harris Shriver & Jacobson Washington, D.C. § 8.07 The Elements o f an Arbitration Provision Page 183 Example 1 Any controversy or claim arising out of or relating to this Agreement, or its breach, is to be settled by arbitration administered by [organization] in accordance with its [subject matter] Rules. Example 2 The parties agree to submit to arbitration administered by the [organization] under its [subject matter] Rules the following controversy: [describe briefly]. Page 186 Example 1 Any controversy or claim arising out of or relating to this Agreement is to be arbitrated, including, without limitation any controversy or claim sounding in tort; except that the parties shall adjudicate any controversy or claim arising out of or relating to [insert deal specific information]. Example 2 The parties shall first attempt to settle by agreement any controversy that arises out of or relates to this Lease or the performance of this Lease. If the parties are unable to settle the controversy, the controversy is to be arbitrated as set forth in Sections _______. Despite the previous two sentences, the parties shall adjudicate any controversy with respect to the payment of Minimum Rent pursuant to the provisions of Sections _________. Page 187 Any controversy or claim arising out of or relating to the purchase price provisions of this Agreement is to be arbitrated. All other controversies or claims arising out of or relating to this Agreement are to be adjudicated. Page 188 The parties agree to submit to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules the following controversy: [describe briefly]. Page 189 Example 1 The parties shall self-administer the arbitration and shall conduct the arbitration in accordance with the AAA Arbitration Rules then in effect. Example 2 The parties shall conduct the arbitration in accordance with the Non-Administered Arbitration Rules of the Center for Public Resources. Page 190 Example 1 The arbitration is to be conducted before a single arbitrator whom the parties shall jointly select. If the parties are unable to agree upon the arbitrator, either party may request the American Arbitration Association to select the arbitrator. Prior to the commencement of hearings, each of the arbitrators appointed must provide an oath or undertaking of impartiality. Example 2 The arbitration is to be conducted before a panel of three arbitrators. Within 15 days after commencement of the arbitration, each party shall select an arbitrator. The two selected arbitrators are to select a third neutral arbitrator within 10 days of the appointment of the last selected arbitrator. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, either party may request the American Arbitration Association to select the third arbitrator. Example 3 If arbitration is necessary, the parties shall request [name of specific arbitrator] to act as the arbitrator. Example 4 The arbitration is to be conducted before a panel of three neutral arbitrators, each of whom must be a member of the Bar of the State of [specify] and actively engaged in the business of law for at least 10 years. Example 5 The arbitrator must be a [practicing attorney], [a retired judge of the [specify court]], or [a certified public accountant]. Example 6 The arbitration is to be conducted before a panel of three arbitrators, consisting of one contractor, one architect, and one construction attorney. Example 7 The arbitration is to be conducted before a panel of three arbitrators. The arbitrators must have experience with and knowledge of electronic computers and the computer business, with at least one of the arbitrators being an attorney. Page 192 Example 1 Relief from the Arbitrators. Either party is entitled to apply to the arbitrator seeking interim or provisional relief until the arbitration award is rendered or the controversy is otherwise resolved. The arbitrators have the authority to issue orders granting interim or provisional relief. Example 2 Relief from the Courts. Either party is entitled to seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party. The interim or provisional relief is to remain in effect until [the arbitration tribunal is established] [the arbitration award is rendered or the controversy is otherwise resolved]. By doing so, the party does not waive any right or remedy under this Agreement. Example 3 Escrow. Pending the outcome of the arbitration, [name of party] shall place in escrow with [law firm, institution, or AAA], as the escrow agent, [the sum of _______, a letter of credit, goods, or the subject matter in the dispute]. The escrow agent is entitled to release the [funds, letter of credit, goods, or subject matter in dispute] as directed by the arbitrator in the award, unless the parties agree otherwise in writing. Page 193 The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. Page 194 Any arbitration proceeding under this Agreement must be commenced no later than one year after the controversy or claim arises. Failure timely to commence an arbitration proceeding is both an absolute bar to the commencement of arbitration proceedings with respect to the controversy or claim and a waiver of the controversy or claim. Page 195 Any award of the arbitrator in favor of [name of party] and against [name of party] is to be at least [specify dollar amount] but may not exceed [specify dollar amount]. [Name of party] expressly waives any claim in excess of [specify dollar amount] and agrees that its recovery may not exceed that amount. Any award under this provision is in satisfaction of all claims by [name of party] against [name of party]. Page 196 Example 1 The arbitrators are to interpret all controversies and claims arising under or relating to this Agreement in accordance with the laws of [state], without regard to its choice of law principles. Example 2 Internationally accepted rules of commercial law govern all disputes arising out of or relating to this Agreement, except that the law of [the United States] governs all disputes arising out of or relating to [patent rights]. Example 3 In rendering an award, the arbitrator is to determine the rights and obligations of the parties according to the substantive and procedural laws of [state]. Page 197 The arbitration is to be conducted in New York, New York. Page 198 (a) Right to Appeal. Either party has the right to appeal the arbitration panel’s award to an appellate arbitrator by filing with the AAA, no later than 20 days after transmittal of the award, a written brief, not to exceed 20 pages, stating the reasons why the panel’s decision should be reversed or modified. The opposing party shall file with the AAA and serve on the appealing party, no later than 20 days after receiving the appeal brief, an opposition brief, not to exceed 20 pages. The AAA is to appoint the appellate arbitrator who is to be a retired judge of a court of record in the state in which the arbitration was held. The AAA is to make this appointment directly, without submission of lists of proposed arbitrators. (b) Oral Argument; Appellate Decision. Either party has the right to request oral argument, which must be conducted no later than 14 days after the submission of the final brief. The appellate arbitration is to be based only on the record of the initial hearing and oral argument, if any. The appellate arbitrator is to render a written decision no later than 20 days after receiving the final appellate submissions. The appellate arbitrator’s decision may be a final decision or it may affirm, reverse, modify or remand the matter for further proceedings by the arbitral panel. However, the reversal, modification or remand may only be on one of the following grounds: (i) Any ground specified in 9 U.S.C. §§ 10 or 11. (ii) The award contains material errors of applicable law. (iii) The award is arbitrary or capricious.