Download Sample Arbitration Clause

Oregon ACC Chapter Arbitration CLE Presentation
Sample Provision
November 12, 2015
1.
MANDATORY ARBITRATION. Except for Litigation Claims (as defined below), any dispute, controversy
or claim arising out of or relating to this Agreement, whether the claim alleges tortious conduct (including
negligence), contract (including without limitation the construction, validity, interpretation, enforceability or
breach of the Agreement) or any other legal theory (statutory or otherwise), shall be settled by arbitration
administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules (as
expressly modified below), and judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof.
1.1. Selection of an Arbitrator. A single arbitrator shall be selected to hear the arbitration. If the parties
cannot agree on an arbitrator within thirty (30) days after acknowledgement of receipt of the initial
arbitration demand by the AAA, the arbitrator shall be selected as provided for in the AAA’s Commercial
Arbitration Rules.
1.2. The Law of the Arbitration. The arbitration shall be governed by the Federal Arbitration Act and the
AAA’s Commercial Arbitration Rules. In the event of a conflict, the AAA’s Commercial Arbitration
Rules shall govern. The law to be applied to the controversy or claim to be settled in the arbitration shall
be the State of New York. The arbitrator shall have no authority to apply the law of other jurisdictions.
The arbitration shall be conducted entirely in the English language. The parties agree that the AAA’s
Expedited Procedures are not applicable to the arbitration.
1.3. Arbitration Fees and Procedures.
1.3.1. The party demanding arbitration, or making a counterclaim in an arbitration, shall pay all filing fees
associated with such demand or counterclaim.
1.3.2. The parties shall share all other AAA arbitration fees, including the expenses and compensation of
the arbitrator, equally. If any party fails to pay in a timely fashion any fees billed by the AAA or the
arbitrator in connection with the arbitration, the other party may file a motion to have the defaulting
party’s claims dismissed. The arbitrator shall dismiss such claims with prejudice if payment in full
is not received prior to a hearing on such motion and shall, even if payment in full is so received,
award attorneys’ fees and costs to the party that moved for dismissal.
1.3.3. Except as otherwise provided in this Agreement, no party shall be liable to any other party for any
part of the other party’s attorneys’ fees, costs, or expenses of arbitration.
1.3.4. The party demanding arbitration shall not amend or add new claims after sixty (60) days has passed
from the date the arbitration demand is served on the other party or after commencement of
depositions, whichever first occurs.
1.3.5. Unless otherwise agreed by the parties or ordered by the arbitrator, the arbitration shall be completed
within six months from the date the arbitrator is selected.
1.3.6. Notwithstanding any rule to the contrary, any party to an arbitration under this Agreement may make
a dispositive motion or a motion seeking declaratory relief with respect to any or all of the issues in
the arbitration. The arbitrator shall decide such motion (i) within thirty (30) days after completion of
briefing and argument by the parties on such motion or (ii) fifteen (15) days before the next hearing,
whichever comes first.
1.4. Class, Collective and Representation Actions Waiver. No party shall commence or seek to prosecute or
defend any dispute, controversy or claim based on any legal theory arising out of or relating to this
Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No
party shall seek to prosecute or defend any dispute, controversy or claim arising out of relating to this
Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator
shall not have the power to consolidate any arbitration under this Agreement with any other arbitration
absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class,
collective, representative, or private attorney general basis.
1.5. Discovery in Arbitration.
1.5.1. Requests for documents shall be limited in scope, time frame (no more than two years prior to the
date the arbitration action was filed), and subject matter that is highly likely to lead to admissible
evidence. No requests may be made for “all documents” of a category or similar matters.
1.5.2. If documents kept in electronic form are requested, the costs of producing such documents shall be
shared equally by the parties.
1.5.3. There shall be no interrogatories, requests for admissions, written depositions, or similar written
discovery.
Oregon ACC Chapter Arbitration CLE Presentation
Sample Provision
November 12, 2015
1.5.4. Each party shall be entitled to up to three depositions of an opposing party or any third party. Each
party is permitted to take one deposition that shall not exceed ten (10) hours in actual time of
testimony. The other two depositions, if taken, shall not exceed seven (7) hours in actual time of
testimony.
1.5.5. Any party proposing to call an expert witness shall produce an expert report and disclosure as
provided for by Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure at least fifteen (15) days
before the hearing at which the expert shall first testify. There shall be no expert witness depositions.
Draft expert reports and related communications shall not be discoverable.
1.6. Additional Limits on the Arbitrator’s Powers. The arbitrator is duty bound to follow the terms and
conditions of this Agreement. In the event the arbitrator fails to follow any terms and conditions of this
Agreement, including but not limited to the items listed below, either party may seek an interim appeal or
appeal after the arbitrator’s final ruling to any court with jurisdiction. The arbitrator shall have the power
to award any remedy provided for by the applicable law, except that the arbitrator shall have no power or
authority to award to any party:
1.6.1. Lost profits or incidental, consequential, exemplary, indirect, punitive, special, or multiple damages,
or any other non-direct damages;
1.6.2. Mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to
secure the payment of an award;
1.6.3. Any damages in excess of the limits set forth in this Section or Section [Limitation of Liability
Section] of this Agreement; or
1.6.4. Interest at any rate (i) in excess of any rate expressly provided for in any applicable written
agreement or (ii) if no such rate is expressly provided for, in excess of the federal judgment rate
published by the U.S District Court for the Western District of New York.
1.7. Arbitration Awards. Any award or partial award by the arbitrator shall be a reasoned written award. No
award of damages shall fail to include a separate computation of any interest awarded.
1.8. Exclusions from Mandatory Arbitration (Litigation Claims). The following claims (“Litigation
Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the
provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse,
by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive
information; or (c) claims for a provisional remedy (such as a temporary restraining order or preliminary
injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to
arbitration and are expressly excluded by the parties from arbitration.
1.9. Costs and Expenses for Seeking to Litigate a Claim Subject to Mandatory Arbitration. If any party
seeks to litigate any dispute, claim or controversy that is subject to mandatory arbitration under this
Agreement, then at the request of the other party, such litigation action shall be dismissed and the party
that brought such litigation action shall pay all attorneys’ fees, expenses and costs incurred by the other
party associated with such litigation action.
1.10. Time for Asserting Claims. No claim subject to mandatory arbitration under this Agreement, whether
the claim alleges breach of contract, tortious conduct (including negligence) or any other legal theory
(statutory or otherwise), shall be asserted more than one (1) year following the date the injured party knew
or should have known of the claimed breach, tort, termination, incorrect calculation or failure to perform
that gives rise to such claim.
1.11. Mediation [Optional]. Any party to this Agreement may, upon the receipt of a demand for arbitration or
the service of a complaint upon it, require that the opposing party mediate its claims before proceeding
with any arbitration or litigation action by giving written notice to the other party within thirty (30) days of
receiving such demand. If mediation is demanded, no arbitration or litigation action may be filed until
after the mediation has been completed.