MCN Fast Track Arbitration Rules

MCN fast track arbitration rules

Rules & Procedures
Effective December 1, 2017

Rule 1. Definitions
Rule 2. Scope and extent of Rules
Rule 3. Amendment of Rules
Rule 4. Overriding effect
Rule 5. Qualification to enter MCN administered arbitration
Rule 6. Place and schedule of arbitration
Rule 7. Language of arbitration
Rule 8. Number of Arbitrators and their selection
Rule 9. Representation
Rule 10. Commencement of arbitration
Rule 11. Preliminary and administrative matters
Rule 12.Interpretation of Rules and Jurisdictional Challenges
Rule 13. Notice of Claims
Rule 14. Change of Claims
Rule 15. Exchange of information
Rule 16. Telephone Conference and Preliminary Conference
Rule 17. Production of Documents
Rule 18. The Arbitration Proceedings
Rule 19. Summary Disposal
Rule 20. Withdrawal from arbitration
Rule 21. Proceedings based upon written submissions alone
Rule 22. Confidentiality and privacy
Rule 23. Settlement or Consent Award
Rule 24. High Low Offer Arbitration Option
Rule 25. Final Offer Arbitration option
Rule 26. Termination of proceedings by declaring an Award
Rule 27. Enforcement of the Award
Rule 28. Waiver
Rule 29. Power of Arbitrator to put sanctions
Rule 30. Fees
Rule 31. Miscellaneous

 

Rule 1. Definitions

Unless explicitly stated otherwise, the terms used would be defined as follows:

  • “Agreement” would mean the arbitration agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not;
  • “Arbitration” means any arbitration whether or not administered by any permanent arbitral institution;
  • “Arbitrator” shall mean, as the context requires, the Arbitrator or the panel of Arbitrators in a tripartite Arbitration.
  • “Electronic filing” (e-file) means the electronic transmission of documents to and from MCN and other Parties for the purpose of filing via the Internet.
  • “Electronic service” (e-service) means the electronic transmission of documents via MCN Electronic Filing System to a party, attorney or representative under these Rules.
  • “Party” would mean the parties/their representative to the arbitration;
  • “Rules” would mean the MCN Engineering and Construction Arbitration Rules and Procedures

Rule 2. Scope and extent of rules

(a) The Rules govern binding Arbitrations of disputes administered by MCN and related to or arising out of contracts

(b) The Parties shall be deemed to have made these Rules a part of their Arbitration agreement (“Agreement”) whenever they have provided either for Arbitration by under these rules or for Arbitration by MCN without specifying any Rules.

(c) The authority and duties of MCN as prescribed in the Agreement of the Parties and in these Rules, shall be carried out by the MCN

  1. d) The parties may agree on any procedures not specified herein provided the newly consented procedures are in tandem with the policies of MCN. In such an event, the parties shall promptly inform MCN and obtain a written confirmation from MCN regarding the same. Only thereafter the party-agreed procedures shall be enforceable as if contained in these Rules
  2. e) Where the parties have already agreed to abide by rules other than the MCN Rules, they may subsequently agree to abide by these Rules and inform MCN about the same in writing.
  3. f) MCN may, in its discretion, assign the administration of an Arbitration to any of its Resolution Centres.

Rule 3. Amendment of Rules

MCN may amend these Rules without notice. The Rules in effect on the date of the commencement of an Arbitration (as defined in Rule 10) shall apply to that Arbitration, unless the Parties have agreed upon another version of the Rules.

Rule 4. Over-riding effect

The Rules are subject to the prevailing laws and in the event of a conflict with the applicable laws, the Rules herein or later amended rules by MCN or agreed-rules by the parties, the laws applicable shall prevail and supersede the Rule(s) directly in conflict with the applicable laws to the extent of the conflict keeping all other rules of MCN intact and enforceable.

Rule 5. Qualification to enter MCN administered arbitration

  • Where the parties in dispute enter into an agreement whether written or orally offered by one party and accepted by the other party, to refer the dispute to MCN for resolution of the dispute by arbitration, or
  • The parties in dispute enter into an agreement to abide by these Rules, whether or not administered by MCN, or
  • Where the parties have at the pre-dispute stage itself put a contractual clause into the contract between the parties keeping provision of referring the dispute to MCN for arbitration and abiding by the rules laid by MCN
  • Where the parties are mandated to refer the dispute to MCN for arbitration by a Court 

Rule 6. Place and schedule of arbitration 

  • The parties are free to agree on the place of arbitration
  • Failing any agreement referred to in clause 1) above, the place of arbitration shall be determined by the arbitrator appointed by the MCN having regard to the circumstances of the case, including the convenience of the parties.
  • The Arbitrator, after consulting with the parties the date, time and location of each hearing.
  • If a Party has failed to participate in the Arbitration process, the Arbitrator may set the Hearing without consulting with that Party. The non-participating Party shall be served with a Notice of Hearing at least thirty (30) calendar days prior to the scheduled date unless the law of the relevant jurisdiction allows for or the Parties have agreed to shorter notice.
  • The Arbitrator, in order to hear a third party witness, or for the convenience of the Parties or the witnesses, may conduct the Hearing at any location or any MCN listed venue may be designated a Hearing location.

Rule 7. Language of arbitration

  • The parties are free to agree upon the language or languages to be used in arbitral proceedings.
  • Failing any agreement referred to in as above, the arbitrator appointed by MCN shall determine the language or languages to be used in arbitral proceedings.
  • The Arbitrator may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the Arbitrator.

Rule 8. Number of Arbitrators and their selection

  • The Arbitration shall be conducted by one neutral Arbitrator appointed by MCN unless all Parties have agreed otherwise.
  • Where the Parties have agreed that each Party is to name one Arbitrator, the Claimant shall name its Arbitrator and provide contact information and curriculum vitae at the time of filing the Demand, and the Respondent shall name its Arbitrator with contact information and curriculum vitae within ten (10) days of the date of the Commencement Letter. Failure to name an Arbitrator within the time specified in this rule will confer the right to name the Arbitrator upon MCN.
  • If the Parties do not agree on an Arbitrator, MCN shall send the Parties a list of at least three (3) Arbitrator candidates. MCN shall also provide each Party with a brief description of the background and experience of each Arbitrator candidate. MCN may replace any or all names on the list of Arbitrator candidates for reasonable cause at any time before the Parties have submitted their choice.
  • Within seven (7) calendar days of service upon the Parties of the list of names, each Party may strike one (1) name and shall rank the remaining Arbitrator candidates in order of preference. The remaining Arbitrator candidates with the highest composite ranking shall be appointed the Arbitrator. If this process does not yield an Arbitrator, MCN shall designate the sole Arbitrator.
  • If a Party fails to respond to a list of Arbitrator candidates within seven (7) calendar days after its service, or fails to respond according to the instructions provided by MCN, MCN shall deem that Party to have accepted all of the Arbitrator candidates.
  • Entities whose interests are not adverse with respect to the issues in dispute shall be treated as a single Party for purposes of the Arbitrator selection process. MCN shall determine whether the interests between entities are adverse for purposes of Arbitrator selection, considering such factors as whether the entities are represented by the same attorney and whether the entities are presenting joint or separate positions at the Arbitration.
  • If, for any reason, the Arbitrator who is selected is unable to fulfill the Arbitrator’s duties, a successor Arbitrator shall be chosen in accordance with this Rule.
  • Any disclosures regarding the selected Arbitrator shall be made as required by law or within five (5) calendar days from the date of appointment. Such disclosures may be provided in electronic format, provided that MCN will produce a hard copy to any Party that requests it. The Parties and their representatives shall disclose to MCN any circumstance likely to give rise to justifiable doubt as to the Arbitrator’s impartiality or independence, including any bias or any financial or personal interest in the results of the Arbitration or any past or present relationship with the Parties or their representatives. The obligation of the Arbitrator, the Parties and their representatives to make all required disclosures continues throughout the Arbitration process.
  • At any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause. The challenge must be based upon information that was not available to the Parties at the time the Arbitrator was selected. A challenge for cause must be in writing and exchanged with opposing Parties who may respond within five (5) days of service of the challenge. MCN shall make the final determination as to such challenge. Such determination shall take into account the materiality of the facts and any prejudice to the Parties. That decision will be final.
  • Where the Parties have agreed that a Party-appointed Arbitrator is to be non-neutral, that Party-appointed Arbitrator is not obliged to withdraw if requested to do so only by the Party who did not appoint that Arbitrator.
  • MCN will make the final determination as to whether an Arbitrator is unable to fulfill his or her duties, and that decision shall be final.

Rule 9. Representation

  • The Parties, whether natural persons or legal entities such as corporations, LLCs or partnerships, may be represented by counsel or any other person of the Party’s choice. Each Party shall give prompt written notice to the MCN Case Manager and the other Parties of the name, address, telephone and fax numbers, and email address of its representative. The representative of a Party may act on the Party’s behalf in complying with these Rules.
  • Changes in Representation. A Party shall give prompt written notice to the Case Manager and the other Parties of any change in its representation, including the name, address, telephone and fax numbers, and email address of the new representative. Such notice shall state that the written consent of the new representative has been obtained and shall state the effective date of the new representation.

Rule 10.Commencement of Arbitration

  • The process of arbitration commences with the issuance of the Commencement Letter by MCN which confirms that requirements for commencement have been met, that MCN has received all payments required under the applicable fee schedule, and that the Claimant has provided MCN with contact information for all Parties along with evidence that the Demand for Arbitration has been served on all Parties.
  • However, the date of the Commencement Letter so referred above is intended to be applicable for the arbitration process under these Rules only and in no way would determine the limitation period laid down by any statute laying down the law of the land.

Rule 11. Preliminary and Administrative Matters

  • MCN may convene, or the Parties may request, administrative conferences to discuss any procedural matter relating to the administration of the Arbitration.
  • If a party files more than one arbitration with MCN, MCN may consolidate the arbitrations into a single arbitration, where MCN finds that common issue of law or facts or both are involved.
  • MCN may in its discretion consolidate fresh request of arbitration into an already ongoing case or cases of arbitration, where the circumstances so demand, keeping in view the links between the cases, and the progress made in the ongoing case or cases of arbitration.
  • Unless applicable law provides otherwise, where MCN decides to consolidate a proceeding into a pending Arbitration, the Parties to the consolidated case or cases will be deemed to have waived their right to designate an Arbitrator as well as any contractual provision with respect to the site and language of the Arbitration.
  • Where a third party seeks to participate in an Arbitration already pending under these Rules or where a Party to an Arbitration under these Rules seeks to compel a third party to participate in a pending Arbitration, the Arbitrator shall determine such request, taking into account all circumstances he or she deems relevant and applicable.
  • At the request of any Party or at the direction of the Arbitrator, a Preliminary Conference shall be conducted with the Parties or their counsel or representatives. The Preliminary Conference may address any or all of the following subjects:

(A) THE EXCHANGE OF INFORMATION IN ACCORDANCE WITH RULE 15 OR OTHERWISE;

(B) THE SCHEDULE FOR DISCOVERY AS PERMITTED BY THE RULES, AS AGREED BY THE PARTIES OR AS REQUIRED OR AUTHORIZED BY APPLICABLE LAW;

(C) THE PLEADINGS OF THE PARTIES AND ANY AGREEMENT TO CLARIFY OR NARROW THE ISSUES OR STRUCTURE THE ARBITRATION HEARING;

(D) THE SCHEDULING OF THE HEARING AND ANY PRE-HEARING EXCHANGES OF INFORMATION, EXHIBITS, MOTIONS OR BRIEFS;

(E)  THE SCHEDULING OF ANY DISPOSITIVE MOTION PURSUANT TO RULE 19;

(G) THE PREMARKING OF EXHIBITS; PREPARATION OF JOINT EXHIBIT LISTS AND THE RESOLUTION OF THE ADMISSIBILITY OF EXHIBITS;

(H) THE FORM OF THE AWARD; AND

(I) SUCH OTHER MATTERS AS MAY BE SUGGESTED BY THE PARTIES OR THE ARBITRATOR.
The Preliminary Conference may be conducted telephonically and may be resumed from time to time as warranted.

Rule 12. Interpretation of Rules and Jurisdictional Challenges

(a) Once appointed, the Arbitrator shall resolve disputes about the interpretation and applicability of these Rules and conduct of the Arbitration Hearing. The resolution of the issues by the Arbitrator shall be final.

(b) Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.

(c) Disputes concerning the appointment of the Arbitrator shall be resolved by MCN.

(d) The Arbitrator may upon a showing of good cause, when necessary to facilitate the Arbitration, extend any deadlines established in these Rules.

Rule 13. Notice of Claims

(a) Each Party shall afford all other Parties reasonable and timely notice of its claims, affirmative defenses or counterclaims. Any such notice shall include a short statement of its factual basis. No claim, remedy, counterclaim, or affirmative defense will be considered by the Arbitrator in the absence of such prior notice to the other Parties, unless the Arbitrator determines that no Party has been unfairly prejudiced by such lack of formal notice or all Parties agree that such consideration is appropriate notwithstanding the lack of prior notice.

(b) Claimant’s notice of claims  shall include a statement of the remedies sought. The Demand for Arbitration may attach and incorporate a copy of a Complaint previously filed with a court. In the latter case, Claimant may accompany the Complaint with a copy of any Answer to that Complaint filed by a Respondent.

(c) Within seven (07) calendar days of service of the notice of claim, a Respondent may submit to MCN and serve on other Parties a response and a statement of any affirmative defenses, including jurisdictional challenges, or counterclaims it may have.

(d) Within seven (07) calendar days of service of a counterclaim, a Claimant may submit to MCN and serve on other Parties a response to such counterclaim and any affirmative defenses, including jurisdictional challenges, it may have.

(e) Any claim or counterclaim to which no response has been served will be deemed denied.

(f) Jurisdictional challenges under Rule 12 shall be deemed waived, unless asserted in a response to a Demand or counterclaim or promptly thereafter, when circumstances first suggest an issue of arbitrability.

Rule 14. Changes of Claims

After the filing of a claim and before the Arbitrator is appointed, any Party may make a new or different claim against a Party or any third Party that is subject to Arbitration in the proceeding. Such claim shall be made in writing, filed with MCN and served on the other Parties. Any response to the new claim shall be made within seven (07) calendar days after service of such claim. After the Arbitrator is appointed, no new or different claim may be submitted except with the Arbitrator’s approval. A Party may request a Hearing on this issue.

Rule 15. Exchange of Information

(a) The Parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information (“ESI”)) relevant to the dispute or claim as may be requested by an opposing party at the time set in the Telephone Conference. Such requests shall be focused on the material issues in dispute and as narrow as reasonably possible.  Depositions will not be taken except upon a showing of exceptional need for same and with the approval of the Arbitrator. When documents to be exchanged are maintained in electronic form, the Party in possession of such documents may make them available in the form most convenient for it. Broad requests for email discovery shall not be permissible.

(b) As they become aware of new documents or information, all Parties continue to be obligated to provide relevant, non-privileged documents and information, to honour any informal agreements or understandings between the Parties regarding documents or information to be exchanged. Documents that were not previously exchanged, may not be considered by the Arbitrator unless agreed by the Parties or upon a showing of good cause.

(c) The Parties shall promptly notify MCN when a dispute exists regarding discovery issues. MCN shall arrange a conference with the Arbitrator, either by telephone or in person, and the Arbitrator shall decide the dispute. With the written consent of all Parties, and in accordance with an agreed written procedure, the Arbitrator may appoint a special master to assist in resolving a discovery dispute.

Rule 16. Telephone Conference and Preliminary Conference

(a) Within five (5) days of appointment of the Arbitrator, MCN will arrange a telephone conference between the Parties and the Arbitrator. During this telephone conference the following subjects may be addressed:

(I) ANY REQUEST FOR EXTENSION OF TIME TO MAKE SUBMISSIONS;

(II) FIRM DATES FOR INITIAL REQUESTS FOR DOCUMENT DISCOVERY;

(III) SELECTION OF VENUE AND DATE FOR THE PRELIMINARY CONFERENCE, AND TENTATIVE SELECTION OF VENUE AND DATES FOR THE EXCHANGE OF INFORMATION AND DOCUMENTS

(IV) ANY OTHER PROCEDURAL MATTERS REQUIRING ATTENTION PRIOR TO THE PRELIMINARY CONFERENCE.

(b) A Preliminary Conference shall be conducted with the Parties or their counsel or representatives to address any or all of the following subjects:

(I) THE EXCHANGE OF INFORMATION IN ACCORDANCE WITH RULE 17 OR OTHERWISE INCLUDING FIRM TIME LIMITS;

(II) AGREEMENTS TO CLARIFY OR NARROW THE ISSUES INCLUDING STIPULATIONS OF FACT OR APPLICABLE LAW AND POSSIBLE BIFURCATION OF ISSUES;

(III) THE SCHEDULING OF FIRM DATES FOR THE HEARING AND ANY PRE-HEARING EXCHANGES OF INFORMATION, EXHIBITS, MOTIONS OR BRIEFS AS CONTEMPLATED BY RULE 20;

(VI) THE SCHEDULING OF ANY DISPOSITIVE MOTION PURSUANT TO RULE 18;

(VIII) THE PREMARKING OF EXHIBITS; PREPARATION OF JOINT EXHIBIT LISTS AND THE RESOLUTION OF THE ADMISSIBILITY OF EXHIBITS AS CONTEMPLATED BY RULE 20;

(IX) THE FORM OF THE AWARD;

(X) SUCH OTHER MATTERS AS MAY BE SUGGESTED BY THE PARTIES OR THE ARBITRATOR.

The Preliminary Conference may be conducted telephonically and may be resumed from time to time as warranted.

Rule 17. Production of Documents

The Arbitrator may issue Summons for the production of documents either prior to or at the Hearing. The Summons shall be issued in accordance with the applicable law.

Rule 18. The Arbitration Proceedings

(a) The Arbitrator will ordinarily conduct the Arbitration Proceedings in the manner set forth in these Rules. The Arbitrator may vary these procedures if it is determined to be reasonable and appropriate to do so.

(b) The Arbitrator shall determine the order of proof, which will generally be similar to that of a court trial.

(c) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product. The Arbitrator shall consider evidence that he or she finds relevant and material to the dispute, giving the evidence such weight as is appropriate.

(e) When the Arbitrator determines that all relevant and material evidence have been presented, and any interim or partial Awards have been issued, the Arbitrator shall declare the proceedings closed.

Rule 19. Summary Disposal

The Arbitrator may permit any Party to file a Motion for Summary Disposal of a particular claim or issue, either by agreement of all interested Parties or at the request of one Party, provided other interested Parties have reasonable notice to respond to the request.

Rule 20. Withdrawal from Arbitration

(a) No Party may terminate or withdraw from an Arbitration after the issuance of the Commencement Letter except by written agreement of all Parties to the Arbitration.

(b) A Party that asserts a claim or counterclaim may unilaterally withdraw that claim or counterclaim without prejudice by serving written notice on the other Parties and on the Arbitrator. However, the opposing Parties may, within seven (7) calendar days of service of such notice, request that the Arbitrator condition the withdrawal upon such terms as he or she may direct.

Rule 21. Proceeding based upon written submissions alone

The Parties are to agree to waive the oral Hearing and submit the dispute to the Arbitrator for an Award based on written submissions and other evidence as the Parties may agree.

Rule 22. Confidentiality and Privacy

(a) MCN and the Arbitrator shall maintain the confidential nature of the Arbitration proceeding and the Award, including the Hearing, except as necessary in connection with a judicial challenge to or enforcement of an Award, or unless otherwise required by law or judicial decision.

(b) The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets or other sensitive information.

(c) Subject to the discretion of the Arbitrator or agreement of the Parties, any person having a direct interest in the Arbitration may attend the Arbitration Hearing. The Arbitrator may exclude any non-Party from any part of a Hearing.

(d) The Parties may not call the Arbitrator, the Case Manager or any other MCN employee or agent as a witness or as an expert in any pending or subsequent litigation or other proceeding involving the Parties and relating to the dispute that is the subject of the Arbitration. The Arbitrator, Case Manager and other MCN employees and agents are also incompetent to testify as witnesses or experts in any such proceeding.

(e) The Parties shall defend and/or pay the cost (including any lawyers’ fees) of defending the Arbitrator, Case Manager and/or MCN from any summons from outside Parties arising from the Arbitration.

(f) The Parties agree that neither the Arbitrator, Case Manager nor MCN is a necessary Party in any litigation or other proceeding relating to the Arbitration or the subject matter of the Arbitration, and neither the Arbitrator, Case Manager nor MCN, including its employees or agents, shall be liable to any Party for any act or omission in connection with any Arbitration conducted under these Rules, including but not limited to any disqualification of or recusal by the Arbitrator.

Rule 23. Settlement and Consent Award

(a) The Parties may agree, at any stage of the Arbitration process, to submit the case to MCN for mediation. The MCN mediator assigned to the case may not be the Arbitrator, unless the Parties so agree.

(b) The Parties may agree to seek the assistance of the Arbitrator in reaching settlement. By their written agreement to submit the matter to the Arbitrator for settlement assistance, the Parties will be deemed to have agreed that the assistance of the Arbitrator in such settlement efforts will not disqualify the Arbitrator from continuing to serve as Arbitrator if settlement is not reached; nor shall such assistance be argued to a reviewing court as the basis for vacating or modifying an Award.

(c) If, at any stage of the Arbitration process, all Parties agree upon a settlement of the issues in dispute and request the Arbitrator to embody the agreement in a Consent Award, the Arbitrator shall comply with such request unless the Arbitrator believes the terms of the agreement are illegal or undermine the integrity of the Arbitration process. If the Arbitrator is concerned about the possible consequences of the proposed Consent Award, he or she shall inform the Parties of that concern and may request additional specific information from the Parties regarding the proposed Consent Award. The Arbitrator may refuse to enter the proposed Consent Award and may withdraw from the case.

Rule 24. High-Low Offer Arbitration Option

(a) At any time before the issuance of the Arbitration Award, the Parties may agree, in writing, on minimum and maximum amounts of damages that may be awarded on each claim or on all claims in the aggregate. The Parties shall promptly notify MCN and provide to MCN a copy of their written agreement setting forth the agreed-upon maximum and minimum amounts.

(b) MCN shall not inform the Arbitrator of the agreement to proceed with this option or of the agreed-upon minimum and maximum levels without the consent of the Parties.

(c) The Arbitrator shall render the Award in accordance with Rule 26.

(d) In the event that the Award of the Arbitrator is between the agreed-upon minimum and maximum amounts, the Award shall become final as is. In the event that the Award is below the agreed-upon minimum amount, the final Award issued shall be corrected to reflect the agreed-upon minimum amount. In the event that the Award is above the agreed-upon maximum amount, the final Award issued shall be corrected to reflect the agreed-upon maximum amount.

Rule 25. Final Offer Arbitration Option

(a) Upon agreement of the Parties to use the option set forth in this Rule, at least seven (7) calendar days before the Arbitration Hearing, the Parties shall exchange and provide to MCN written proposals for the amount of money damages they would offer or demand, as applicable, and that they believe to be appropriate . MCN shall promptly provide a copy of the Parties’ proposals to the Arbitrator, unless the Parties agree that they should not be provided to the Arbitrator. At any time prior to the close of the Arbitration Hearing, the Parties may exchange revised written proposals or demands, which shall supersede all prior proposals. The revised written proposals shall be provided to MCN, which shall promptly provide them to the Arbitrator, unless the Parties agree otherwise.

(b) If the Arbitrator has been informed of the written proposals, in rendering the Award the Arbitrator shall choose between the Parties’ last proposals, selecting the proposal that the Arbitrator finds most reasonable and appropriate in his discretion

(c) If the Arbitrator has not been informed of the written proposals, the Arbitrator shall render the Award as if pursuant to Rule 26, except that the Award shall thereafter be corrected to conform to the closest of the last proposals, and the closest of the last proposals will become the Award.

(d) Other than as provided herein, the provisions of Rule 26 shall be applicable.

Rule 26. Termination of proceedings by declaring an Award

(a) The Arbitrator shall render a Final Award or a Partial Final Award within twenty (20) calendar days after the receipt by the Arbitrator of all materials specified by the Parties, except (i) by the agreement of the Parties, (ii) upon good cause for an extension of time to render the Award, or (iii) as provided in Rule 18 (i). The Arbitrator shall provide the Final Award or the Partial Final Award to MCN for issuance in accordance with this Rule.

(b) In determining the merits of the dispute the Arbitrator shall be guided by the rules of law agreed upon by the Parties. In the absence of such agreement, the Arbitrator shall be guided by the rules of law and equity that the Arbitrator deems to be most appropriate. The Arbitrator shall have the power to grant any remedy or relief that is just and equitable and within the scope of the Parties’ agreement, including but not limited to specific performance of a contract or any other equitable or legal remedy.

(c) In addition to a Final Award or Partial Final Award, the Arbitrator may make other decisions, including interim or partial rulings, orders and Awards.

(d) Interim Measures. The Arbitrator may grant whatever interim measures are deemed necessary, including injunctive relief and measures for the protection or conservation of property and disposition of disposable goods. Such interim measures may take the form of an interim or Partial Final Award, and the Arbitrator may require security for the costs of such measures. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.

(e) The Award of the Arbitrator may allocate Arbitration fees and Arbitrator compensation and expenses unless such an allocation is expressly prohibited by the Parties’ agreement. (Such a prohibition may not limit the power of the Arbitrator to allocate Arbitration fees and Arbitrator compensation and expenses pursuant to Rule 30 (c))

(f) The Award of the Arbitrator may allocate attorneys’ fees and expenses and interest (at such rate and from such date as the Arbitrator may deem appropriate) if provided by the Parties’ agreement or allowed by applicable law. When the Arbitrator is authorized to award attorneys’ fees and must determine the reasonable amount of such fees, he or she may consider whether the failure of a Party to cooperate reasonably in the discovery process and/or comply with the Arbitrator’s discovery orders caused delay to the proceeding or additional costs to the other Parties.

(g) The Award will consist of a written statement signed by the Arbitrator regarding the disposition of each claim and the relief, if any, as to each claim. Unless all Parties agree otherwise, the Award shall also contain a concise written statement of the reasons for the Award.

(h) After the Award has been rendered, and provided the Parties have complied with Rule 30, the Award shall be served by MCN upon the Parties. Service may be made by Registered Post. It need not be sent certified or registered.

(i) Within seven (7) calendar days after service of a Partial Final Award or Final Award by MCN, any Party may serve upon the other Parties and on MCN a request that the Arbitrator correct any computational, typographical or other similar error in an Award (including the reallocation of fees pursuant to Rule 30 ( c )  or on account of the effect of an offer to allow judgment). Party opposing such correction shall have seven (7) calendar days thereafter in which to file any objection. The Arbitrator may make any necessary and appropriate correction to the Award within twenty-one (21) calendar days of receiving a request or fourteen (14) calendar days after the Arbitrator’s proposal to do so. The Arbitrator may extend the time within which to make corrections upon good cause. The corrected Award shall be served upon the Parties in the same manner as the Award.

(j) The Award is considered final, for purposes of judicial proceeding to enforce, modify or vacate the Award/Corrected Award.

Rule 27. Enforcement of the Award

Judicial Proceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the applicable state law.

Rule 28. Waiver

(a) If a Party becomes aware of a violation of or failure to comply with these Rules and fails promptly to object in writing, the objection will be deemed waived, unless the Arbitrator determines that waiver will cause substantial injustice or hardship.

(b) If any Party becomes aware of information that could be the basis of a challenge for cause to the continued service of the Arbitrator, such challenge must be made promptly, in writing, to MCN. Failure to do so shall constitute a waiver of any objection to continued service of the Arbitrator.

Rule 29. Power of Arbitrator to put sanctions

The Arbitrator may order appropriate sanctions for failure of a Party to comply with its obligations under any of these Rules or with an order of the Arbitrator. These sanctions may include, but are not limited to, assessment of Arbitration fees and Arbitrator compensation and expenses, any other costs occasioned by the actionable conduct including reasonable attorneys’ fees, exclusion of certain evidence, drawing adverse inferences, or in extreme cases determining an issue or issues submitted to Arbitration adversely to the Party that has failed to comply.

Rule 30. Fees

(a) Each Party shall pay its pro-rata share of MCN fees and expenses as set forth in the MCN Commencement Letter and fee schedule in effect at the time of the commencement of the Arbitration, unless the Parties agree on a different allocation of fees and expenses or MCN thereafter directs a different allocation upon consolidation with another Arbitration. MCN agreement to render services is jointly with the Party and the Party’s attorney or other representative of the Party in the Arbitration. The non-payment of fees may result in an administrative suspension of the case.

(b) MCN requires that the Parties deposit the fees and expenses for the Arbitration from time to time during the course of the proceedings and prior to the Hearing. The Arbitrator may preclude a Party that has failed to deposit its pro-rata or agreed-upon share of the fees and expenses from offering evidence of any affirmative claim.

(c) The Parties are jointly and severally liable for the payment of MCN Arbitration fees and Arbitrator compensation and expenses. In the event that one Party has paid more than its share of such fees, compensation and expenses, the Arbitrator may award against any other Party any such fees, compensation and expenses that such Party owes with respect to the Arbitration.

(d) Entities whose interests are not adverse with respect to the issues in dispute shall be treated as a single Party for purposes of MCN assessment of fees. MCN shall determine whether the interests between entities are adverse for purpose of fees, considering such factors as whether the entities are represented by the same attorney and whether the entities are presenting joint or separate positions at the Arbitration.

(e) Where the passing of award is delayed beyond a period of six months, the fee of the Arbitrator would be reduced @ 5% for each month/part of the month of the delay.

Rule 31. Miscellaneous

  • If, at any time, any Party has failed to pay fees or expenses in full, MCN may order the suspension or termination of the proceedings. MCN may so inform the Parties in order that one of them may advance the required payment. If one Party advances the payment owed by a non-paying Party, the Arbitration shall proceed and the Arbitrator may allocate the non-paying party’s share of such costs, in accordance with Rules 26(f) and 30(c). An administrative suspension shall toll any other time limits contained in these Rules, applicable statutes or the Parties’ Agreement.
  • MCN does not maintain an official record of documents filed in the Arbitration. If the Parties wish to have any documents returned to them, they must advise MCN in writing within 30 calendar days of the conclusion of the Arbitration. If special arrangements are required regarding file maintenance or document retention, they must be agreed to in writing and MCN reserves the right to impose an additional fee for such special arrangements. Documents that are submitted for e-filing are retained for 30 calendar days following the conclusion of the Arbitration.
  • The Arbitrator may at any time require electronic filing and service of documents in an Arbitration. If an Arbitrator requires electronic filing, the parties shall maintain and regularly monitor a valid, usable and live email address for the receipt of all documents filed through MCN Electronic Filing System. Any document filed electronically shall be considered as filed with MCN when the transmission to MCN Electronic Filing System is complete. Any document e-filed by 11:59 p.m. (of the sender’s time zone) shall be deemed filed on that date. Upon completion of filing, MCN Electronic Filing System shall issue a confirmation receipt that includes the date and time of receipt. The confirmation receipt shall serve as proof of filing.
  • Every document filed with MCN shall be deemed to have been signed by the Arbitrator, Case Manager, attorney or declarant who submits the document to MCN, and shall bear the typed name, address and telephone number of a signing attorney. Documents containing signatures of third-parties (i.e., unopposed motions, affidavits, stipulations, etc.) may also be filed by indicating that the original signatures are maintained by the filing Party in paper-format.
  • Delivery of e-service documents through MCN Electronic Filing System to other registered users shall be considered as valid and effective service and shall have the same legal effect as an original paper document. Recipients of e-service documents shall access their documents through MCN Electronic Filing System. E-service shall be deemed complete when the party initiating e-service completes the transmission of the electronic document(s) to MCN Electronic Filing System for e-filing and/or e-service. Upon actual or constructive receipt of the electronic document(s) by the party to be served, a Certificate of Electronic Service shall be issued by MCN Electronic Filing System to the party initiating e-service and that Certificate shall serve as proof of service. Any party who ignores or attempts to refuse e-service shall be deemed to have received the electronic document(s) 72 hours following the transmission of the electronic document(s) to MCN Electronic Filing System.
  • If an electronic filing or service does not occur because of (1) an error in the transmission of the document to MCN Electronic Filing System or served Party which was unknown to the sending Party, (2) a failure to process the electronic document when received by MCN Electronic Filing System, (3) the Party was erroneously excluded from the service list, or (4) other technical problems experienced by the filer, the Arbitrator or MCN may, for good cause shown, permit the document to be filed “now for then” to the date it was first attempted to be sent electronically. Or in the case of service, the Party shall, absent extraordinary circumstances, be entitled to an order extending the date for any response or the period within which any right, duty or other act must be performed.
  • For documents that are not filed electronically, service by a Party under these Rules is effected by providing a copy of the document to each Party and each Arbitrator, and the original of the document to MCN. Service shall be by electronic mail or facsimile transmission.
  • In computing any period of time prescribed or allowed by these Rules for a Party to do some act within a prescribed period a “day” shall mean a business day.
  • No Party may have any ex parte communication with a neutral Arbitrator, except as provided in section (j) of this Rule. The Arbitrator(s) may authorize any Party to communicate directly with the Arbitrator(s) by email or other written means, so long as copies are simultaneously forwarded to the MCN Case Manager and the other Parties.
  • A Party may have ex parte communication with its appointed neutral or non-neutral Arbitrator as necessary to secure the Arbitrator’s services and to assure the absence of conflicts and in connection with the selection of the Chairperson of the arbitral panel.
  • The Parties may agree to permit more extensive ex parte communication between a Party and a non-neutral Arbitrator. More extensive communications with a non-neutral arbitrator may also be permitted by applicable law and rules of ethics.