RULES of the NYSAA
The New York Strategic Arbitration Alternative Rules.
1. Agreement of the Parties
The parties shall be deemed to have made these rules a part of their arbitration agreement whenever they have provided for arbitration by the New York State Arbitration Alternative Corp., (hereinafter the “ NYSAA”) or under its Commercial Arbitration Rules. These rules and any amendment to them shall apply at the time the demand for arbitration or submission agreement is received by NYSAA. The parties by written agreement, may vary the procedures set forth in these rules.
2. Arbitration Panel
Any tribunal constituted by the parties for the adjudication of their dispute under these rules shall be called the New York Arbitration Panel. Or a Panel of Neutrals if more than one Arbitrator.
3. Administrator And Delegation of Duties
When parties agree to arbitrate under these rules, or when they provide for arbitration by the NYSAA and an arbitration is initiated under these rules, they thereby authorize NYSAA to exclusively administer the arbitration. The authority and duties of the NYSAA are prescribed in the agreement of the parties and in these rules, and shall be administered by the NYSAA pursuant to these rules, as amended from time to time. The Neutral or Arbitrator shall be empowered to interpret and determine the application of all provisions under these rules, including the issue of arbitrability, and take appropriate action to obtain compliance with any ruling. The Chief Administrator shall be charged with the administration of cases arbitrated under these rules, and the Chief Administrator may appoint Regional Administrators and Case Administrators as needed.
4. Panel of Arbitrators
NYSAA shall establish and maintain a Panel of Arbitrators and shall appoint arbitrators as provided in these rules. Such Arbitrators are to be chosen by the Parties from a discretionary list of Neutrals designated by the NYSAA Administrators based on internal criteria including but not limited to availability, expertise, experience and hourly rates.
5. Local Offices
NYSAA may, in its discretion, assign the administration of an arbitration to any of its local offices, and will endeavor to assign an arbitration to the local office closest to the claimant. If the arbitration agreement between the parties designates a particular venue NYSAA will assign the arbitration to its local office closest to the venue designated by the parties.
The Parties may also have pre agreed to a virtual online ADR procedure or voluntarily request online procedure and in this case the NYSAA can appoint worldwide Neutrals as relevant to the matter to be picked by the Parties individually for disputes of less than $250,000 and or as part of the Panel for Disputes in excess of $250,000.
6. Initiating Arbitration By Demand, Answer And Counterclaim
Initiation of an Arbitration when provided for in the arbitration agreement shall be initiated in the following manner:
- The initiating party (hereinafter Claimant) shall, initiate the process by filing for an Index number and provide supportive documents of the right to arbitrate through the NYSAA including a copy of the basis for arbitration with the NYSAA, together with the appropriate filing fee to be allocated against the Neutral(s) hourly rates.
- Within the time period and as part of the initial filing, if any specified in the arbitration agreement, or alternatively subject to our calendar attached hereto by reference, the Claimant, must serve process upon the Respondent(s) by giving written notice to the other party (hereinafter Respondent) of its Demand to arbitrate (Demand), which notice shall contain a statement setting forth the nature of the dispute, the monetary amount involved, if any, the value of damages sustained and other relief sought, thus, opting for the estimated 30 business days process or the approximated 90 business days process; And
- Claimant shall once Index is allocated shortly after (approximately 48 hours) file online the initial Demand and a copy of the agreement providing for arbitration, into the allocated case management folder either individually or through its attorney and a detailed statement of Claimant’s claim and factual allegations supporting Claimant’s position, All filings shall be made online and later transferred to a designated “dropbox” for the case after fees are being paid and the Index case number assigned;
Claimant must serve process with either a pre-approved process server or as per the specificity under the agreement between the parties, the clock from an NYSAA stand point of view starts ticking from the moment Service Of Process was properly deemed completed on Respondent(s) with the submission of an affidavit of service, Respondent(s) has fifteen (15) days to answer and counter claim. In the event the process server failed to complete service of process and or to provide for an affidavit for service of process, only then, alternative means of service maybe discussed with the NYSAA case manager.
- Claimant must serve process with either a pre-approved process server or as per the specificity under the agreement between the parties, the clock from an NYSAA stand point of view starts ticking from the moment Service Of Process was properly deemed completed on Respondent(s) with the submission of an affidavit of service, Respondent(s) has fifteen (15) days to answer and counter claim.
- NYSAA may at its discretion give notice of such filing to the Respondent(s) within five days via the email provided or by mail followed by a call to concur all.
- A Respondent must file an answering statement in duplicate with NYSAA within fifteen days after notice from NYSAA, or the date Service of Process was completed based on the affidavit of service provided on file, the earlier of the two, in which event the Respondent shall at the same time send a copy of the answering statement to the Claimant and any counterclaim Respondent may want to assert.
- If a counterclaim is asserted, it shall contain a statement setting forth the nature of the counterclaim, factual allegations supporting Respondent’s position, the monetary amount involved, if any, and any other relief or remedy sought. If a counterclaim is made, the fee for the arbitrator(s) upfront fee must be paid or the counterclaim will be ignored.In the event Respondent(s) counterclaim and the damages assessed bracket is above $250,000, the NYSAA will assess the basis to change the calendar process from 30 days if such was the case in the initial filing to the 90 days estimated time frame.
- If no answering statement is filed within the stated time Respondent shall be deemed to be in default.
- A party’s failure to pay the appropriate arbitrator upfront hourly fee requested by NYSAA shall constitute a default and the defaulting party’s claim, answer, counterclaim or answer to counterclaim shall not be considered.
- Claimant will get another 10 days extension to answer the respondent(s) counterclaim if needed to amend its counter claim, but not necessarily is Claimant required to amend its initial demands. Responded the same, all but one time for each party.
- Failure to file an answering statement shall not operate to delay the arbitration.
- A counterclaim filed without the appropriate filing fee shall not be considered.
- A Claimant may file an answer to the counterclaim by filing a statement of Claimant’s position with respect to the counterclaim in duplicate with NYSAA with a copy to Respondent. If an answer to the counterclaim is not filed the Claimant shall be deemed to deny the allegations of the counterclaim and Respondent’s right to any relief thereto.
7. Initiating Under A Submission
Parties to any existing dispute may commence an arbitration under these rules by filing with NYSAA the copies of a written submission to arbitrate under these rules, signed by the parties. It shall contain a statement of the matter in dispute, the monetary amount involved, if any, any other relief or remedy sought, factual allegations supporting the Claimant’s position and Respondent’s position, and the hearing locale requested, together with the appropriate filing fee (or fees if a counterclaim is filed) which are described on the NYSAA site in file a claim section and are solely allocated toward Neutrals hourly rates and time spent.
8. Change Of Claims
After filing of a claim if either party desires to make any amendments or new or different claim or counterclaim, the claim or counterclaim shall be made in writing and filed in duplicate with NYSAA, and a copy shall be certified mailed to the other party, who shall have a period of an additional ten 10 business days, putting on hold the NYSAA procedure timeline, from the date of such mailing within which to file an answer with NYSAA and a copy to the other party, all is to be also filed on the online forum allocated for this matter through the system provided by the NYSAA for all Parties involved to see. Any amendment must be accompanied by the appropriate filing fee as provided for the schedule of fees herein. After the arbitrator(s) is appointed, however, no new or different claim may be submitted except with the arbitrator’s consent.
9. Number Of Arbitrators
Where the claim or counterclaim is $250,000.00 or less there shall be one (1) arbitrator and the NYSAA is committing to attempt to complete the process within thirty (30) business days. Where the claim or counterclaim exceeds $250,000.00 there shall be three (3) arbitrators unless the parties request and consent to one arbitrator, all to be selected out of the list provided by the NYSAA administrator and to be completed within an estimated approximate time of ninety (90) business days. The timeline can be reasonably extended by the presiding Neutral but never decreased.
10. Qualifications Of An Arbitrator
Neutrals are industry experts, practicing lawyers, community and religious leaders, or retired judges. Arbitrators shall be fair and impartial. An arbitrator shall disclose to the NYSAA administrator any circumstances which may affect impartiality, bias or any financial or personal interest in the arbitration or any personal relationship with the parties, their witnesses or counsel. Arbitrators shall be selected or appointed from NYSAA’s panel of arbitrators, subject to recusal or disqualification. In the event the parties request and consent to the appointment of an arbitrator who is not on NYSAA’s panel, such arbitrator shall first qualify for appointment pursuant to NYSAA rules for arbitrators then in effect and agree to comply with NYSAA rules and procedures. Notwithstanding such qualification NYSAA reserves the right not to appoint the arbitrator requested by the parties.
The term “arbitrator” in these rules refers to the arbitration panel, whether composed of one or more arbitrators. The term Neutral includes Mediator.
11. Appointment of Arbitrators
- Expedited Arbitration Involving Disputes no greater than $250,000.00 exclusive of attorneys’ or other professional fees.
Where neither a claim nor counterclaim seeks monetary damages exceeding $250,000 a single arbitrator shall be selected by the parties unanimously within 3 business days from a list provided by the NYSAAor discretionarily designated by the administrator if the party failled to reach an understanding in order to conduct the arbitration proceeding. NYSAA shall notify the parties of the designation of the single arbitrator and the parties shall have 5 business days in which to notify NYSAA of their objection for cause requesting the disqualification of the designated arbitrator in which event NYSAA shall select another arbitrator to conduct the arbitration. If either of the parties’ object to the second designated arbitrator, then an arbitrator shall be selected unilaterally by the case manager at the NYSAA arbitrarily. Nonetheless, in expedited procedures Neutrals appointment occurs around 10 business days from the counting day and for longer procedure around 90 days the appointment occurs within 15 business days from start of the counting day.
- Arbitration’s Involving Disputes greater than $250,000.00
Upon the filing of the demand for arbitration where the amount sought is greater than $250,000, NYSAA shall allow the parties to select up the 3 Neutrals/ arbitrators. Within fifteen (15) business days, form the counting day, either party may, by writing delivered to NYSAA and to all parties to the proceeding, demand that the claim be heard by a panel of three (3) arbitrators. The parties may unilaterally for economical reasons or other personal reasons agree to have a single arbitrator preside and waive the required panel of three (3) if unanimously waived in writing by all the parties involved (Claimants and Respondents). Upon the start of the proceeding and from the counting day (Respondent(s) filed Answer), the NYSAA, will be providing to each party an identical list of names of persons chosen from the panel, all that approximatively within ten (10) to fifteen (15) business days thereafter based on Neutrals availability, each party shall return the list of selected Neutrals to NYSAA striking those names objected to and numbering the remaining names in order of priority of preference. A party may challenge up to three (3) names without cause or explanation. Additional challenges for cause shall be permitted and the party making the challenge shall explain the nature of the objection. The NYSAA reserves the right to determine if the objection is sufficient to disqualify the arbitrator. NYSAA shall not disclose to arbitrators any objections or communication relating to the selection process.
When returning the panel list each party shall pay the required arbitration fee deposit specified in the notice for selection of arbitrators. A party who fails to timely return the list shall be deemed to have accepted all selected panel members. Failure to timely pay arbitrator fees shall constitute a default and the defaulting party’s claim, or counterclaim as the case may be, shall be dismissed. If additional panel members are needed another list will be sent to the parties for selection within the time specified in the notice from NYSAA, which shall not exceed ten days.
In all disputes the parties shall identify the general practice area they believe the Neutrals expertise is required.
If for any reason an arbitrator is unable to perform the duties of the office, the NYSAA may declare the office vacant. Vacancies shall be filled in accordance with the applicable provisions of these rules for selection of arbitrators.
In the event of a vacancy in a panel of three (3) arbitrators after the hearings have commenced, the remaining arbitrator or arbitrators may continue with the hearing and determination of the controversy, unless all parties agree otherwise and request that a new panel be appointed, in which event the arbitrators who had previously been selected will again submit to the selection process. Upon consent of all parties arbitrators serving in the matter may continue without submitting to the selection process and only the vacancy will be filled and the hearing continued.
13. Date, Time And Place Of Hearing
The arbitrator shall set the date, time, and place for each hearing. Unless necessary for technical or legal reasons, all hearings are conducted virtually via a portal with access code. The NYSAA shall send a notice of hearing to the parties at least ten (10) business days in advance of the hearing date which can occur only after all deposition have been taken. Hearings that take more than one session shall, at the arbitrator’s discretion, be conducted day to day until completed. The Parties may opt for in person hearing at the parties’ expenses and additional cost for the Neutral, in that instance, the Neutrals may still for the sake of equity, authorized a witness to be intervening virtually online via the web or telephone.
14. Representation By Counsel
Unless excused by NYSAA, a Claimant, a Respondent asserting a counterclaim and any party who is an entity other than a natural person, must be represented by an attorney at law admitted to practice in the locale where the arbitration is to be conducted, or where the arbitration agreement was made, or who is admitted to practice in any other state upon consent by NYSAA, which consent shall not unreasonably be withheld, and further provided that the jurisdiction in which the arbitration is being held does not prohibit attorneys not admitted in that jurisdiction from representing parties in arbitration proceedings. A natural person may appear pro se and may have an attorney at law appear at any time in the proceedings. An attorney appearing for a party shall note his appearance with the NYSAA, and all papers submitted to the NYSAA shall include the attorney’s firm name, attorney responsible for the matter, office address, telephone number, fax number, e-mail address, and identification number if required by the State in which the attorney is licensed to practice.
15. Discovery Proceedings
b. In any arbitration involving a claim or counterclaim in which the amount in controversy exceeds $250,000 the parties shall be entitled to conduct discovery subject to such conditions and schedule as the NYSAA or the arbitrator shall direct.
c. The Neutrals may decide at their own discretion as to reasonable due process rules for production of any evidence.
16. Stenographic Record, Video Taping And Audio Recording
18. Attendance At Hearings
22. Order Of Proceedings And Communication With Arbitrator
a. Prior to commencement of a hearing the parties shall have filed their respective claim, answer, counterclaim, answer to counterclaim, or pursuant to these rules waived the filing of such papers, and paid all appropriate fees. The arbitrator shall have filed an oath of office.
b. The arbitration shall commence with the arbitrator noting and recording the names and addresses of the parties and their counsel, the papers filed with NYSAA and furnished to the arbitrator to be used in connection with the proceedings, the amount and relief demanded by each party in their papers which determines the length of the proceeding if approved by the Neutral.
c. The arbitrator may request or permit opening statements by the parties. A party represented by counsel shall participate only through counsel except as permitted by the arbitrator.
d. The arbitrator shall then hear testimony from the witnesses in the following order: the claimant presenting its case first, respondent’s defense, claimant’s rebuttal, respondent’s counterclaim, claimant’s answer, respondent’s rebuttal. The order of testimony may be modified with the arbitrator’s consent. All parties shall be given the full opportunity to present all material and relevant evidence. Each witness shall be subject to cross examination by all parties and the arbitrator shall be permitted to question the witness directly. Timeline is to be framed as much as possible to the NYSAA intended calendar.
e. Upon the conclusion of testimony, the arbitrator may request or permit closing statements and the filing of post hearing memorandum of law or such other evidence the arbitrator deems appropriate.
f. There shall be no direct communication between the parties and the arbitrator other than at hearings, or pre-hearing, unless the parties and the arbitrator agree otherwise. Any other oral or written communication from the parties to the arbitrator shall be directed to the NYSAA for transmittal to the arbitrator and uploaded into the proper dropbox or cloud/site allocated for the case.
23. Arbitration In The Absence Of A Party
Unless the law provides to the contrary, the arbitration may proceed in the absence of any party who, after due notice pursuant to these rules, fails to appear at a hearing or is otherwise unable or unwilling to participate in the hearing. An award shall not be made solely on the default of a party. The arbitrator shall require the party who is present to submit such evidence as the arbitrator may require for the making of an award, the party pursuing the matter will pay for the entire costs of arbitration.
a. The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. An arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently.
b. The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and conformity to legal rules of the evidence shall not be necessary, unless the arbitration agreement provides that the rules of evidence and substantive laws of a particular jurisdiction shall be observed and enforced, subject to the interests of substantial justice and economy of the arbitration proceedings. An arbitrator may receive affidavits of witnesses and papers certified by counsel as true copies into evidence. All testimony evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where a party is in default in appearing or has waived the right to be present.
c. When there is more than one arbitrator the NYSAA shall appoint an arbitration chairman who shall rule on matters of procedure and evidence and whose rulings shall govern unless the majority of arbitrators request a different ruling on a particular matter, which request must be made at the time of the initial ruling.
25. Evidence By Affidavit Or Other Evidence
b. If the parties agree or the arbitrator directs that documents or other evidence be submitted to the arbitrator after the hearing, the documents or other evidence shall be filed with NYSAA for transmission to the arbitrator unless directed otherwise by the arbitrator. All parties shall be afforded an opportunity to examine such documents or other evidence.
c. Upon consent of the parties and the arbitrator, the arbitrator may decide the dispute on submission of documents only, and without a hearing. NYSAA or the arbitrator shall obtain consent of the parties or their counsel in writing that they waive a hearing and that the matter shall be decided on submission of documents only. All documents submitted to the arbitrator shall be served on adverse parties. The arbitrator may, solely in the arbitrator’s discretion, request additional documents or request that the parties appear for testimony before the arbitrator if the arbitrator is unable to render a decision on the documents only.
d. Motions for any relief may be made only on consent of NYSAA or the arbitrator, if one has been appointed, and on such conditions as NYSAA or the arbitrator may impose. Motions shall be decided by NYSAA or the arbitrator or panel of arbitrators, if appointed.
e. Upon request of a party or witness and with consent of NYSAA, or the arbitrator if one has been appointed, a witness may appear at trial by telephone, on such conditions as NYSAA or the arbitrator shall direct. The witness shall be sworn in by the arbitrator, be examined and cross examined, and the arbitrator shall give such weight to the testimony as the arbitrator shall deem appropriate. A request to appear by telephone by a witness must be made at least 7 days prior to the trial on notice to adverse parties. A witness must have a telecopier available to receive documents while testifying by telephone appearance. Witnesses appearing by telephone shall be responsible for telephone connection arrangements acceptable to the arbitrator and any expense in connection with such appearance. A witness contesting the authenticity of a document or a signature on a document may not appear by telephone.
27. Interim Relief
28. Closing Of Hearing
29. Reopening Of Hearing
30. Waiver Of Oral Hearing
31. Waiver Of Rules
32. Extensions Of Time
33. Serving Notices And Papers
- Each party shall be deemed to have consented that any papers, notices, or process necessary or proper for the initiation or continuation of an arbitration under these rules; for any court action in connection therewith; or for the entry of judgment on any award made under these rules may be served on a party by mail addressed to the party or its counsel at the address filed by that party with NYSAA or the last known address or by personal service, in or outside the state where the arbitration is to be held.
- NYSAA and the parties may also use facsimile transmission, e-mail, or other written forms of electronic communication to give the notices required by these rules.
- Any papers filed by a party with NYSAA must show by affidavit or certification by counsel that service has been made on the other parties.
34. Time Of Award
- The award shall be made promptly by the arbitrator and, unless otherwise agreed by the parties or specified by law, no later than fifteen days from the date of closing the hearing, or, if oral hearings have been waived, from the date of the NYSAA’s transmittal of the final statements and proofs to the arbitrator.
- At NYSAA’s discretion, no award shall be made until all fees owed the NYSAA and the arbitrator have been paid.
35. Form Of Award
The award shall be in writing and shall be signed by the single arbitrator or if more than one the presiding arbitrators.
36. Scope Of Award
37. Award Upon Settlement
38. Delivery Of Award To Parties and Confirmation of Award
- Parties shall accept as legal delivery of the award the placing of the award or a true copy thereof in the mail addressed to a party or its counsel at the last known address, personal service of the award, or the filing of the award in any other manner that is permitted by law.
- The parties shall comply with the award within 10 days unless additional or other time is specified in the award.
- If a party fails to timely comply with the award, a party commencing a proceeding in a court of law to confirm or enforce the award shall be entitled to additional counsel fees for post arbitration proceedings as the court may deem appropriate.
- Service of process in any action or proceeding to confirm an award may be made by United States Postal mail, postage paid, addressed to the attorney appearing for any party in the arbitration proceeding or addressed to the party at the address designated in the arbitration agreement, or by any other manner of service authorized by the law of the jurisdiction.
39. Release Of Documents For Judicial Proceedings
40. Applications To Court And Exclusion Of Liability
- No judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate unless the law of such jurisdiction deems voluntary participation in judicial proceedings to be a waiver of the right to arbitrate.
- Neither NYSAA nor any arbitrator in a proceeding under these rules is a necessary or appropriate party in judicial proceedings relating to the arbitration.
- Parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.
- Neither NYSAA nor any arbitrator shall be liable to any party for any act, commission or omission in connection with any arbitration conducted under these rules.
- The parties shall indemnify and hold NYSAA and the arbitrator harmless from and against any claim, cause of action, expense, including counsel, expert witness fees and expenses, relating to the arbitration proceeding and/or defense of any action.
41. No Administrative Fee
- NYSAA shall prescribe filing and other administrative fees and service charges to compensate it for the cost of providing administrative services. The fees in effect when the fee or charge is incurred shall be applicable.
- All fees advanced by the parties are subject to final apportionment by the arbitrator in the award.
- NYSAA may, in the event of extreme hardship on the part of any party, defer or reduce the administrative fees.
- Administrative fees are for each claimant and each counterclaimant. Claims or counterclaims setting forth multiple claims or theories of causes of action for the same relief are not considered separate claims for fee purposes.