​PROCEDURAL RULES FOR METRO CONSTRUCTION ARBITRATION

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These Procedural Rules (“Rules”) shall govern binding arbitration of the disputes and claims submitted to Metro Construction Arbitration. The Parties shall be deemed to have agreed to be bound by these Rules and to have incorporated them by reference into their agreements providing for resolution of disputes and claims by Metro Construction Arbitration.

 

1.  The Parties may appear in the arbitration without legal counsel or be represented at their own expense by an attorney who is in good standing at the bar of any court.

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2.  Procedural rules of court do not apply in arbitration. The arbitrator has a plenary authority to conduct arbitration in the way that will, in his/her considered opinion, provide for a fair, expeditious, and cost-effective resolution of the parties’ disputes under the applicable law.

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3.  Service of notices by the parties on one another shall be effected:

a)  in the manner specified in the arbitration agreement between the parties, or,

b)  if no method of service is agreed upon by the parties in writing, by service as authorized for the commencement of a civil action in the state where the service is to be performed, or,

c)  in New York, by certified or registered mail, return receipt requested, or

d)  in New Jersey, Pennsylvania, and Connecticut, by certified or registered mail, return receipt requested and obtained, or

e)  in any other jurisdiction, according to the controlling statute or court rule of that jurisdiction.

 

4.  To commence arbitration, the Claimant shall file with Metro Construction Arbitration (“MCA”) a Demand for Arbitration or Notice of Intent to Arbitrate (hereinafter any mention of Demand for Arbitration shall be read as to include “or Notice of Intent to Arbitrate”). Filing shall be accepted by personal delivery, by courier, or by any means of recorded delivery and deemed dated on the day of receipt in our office; filing by facsimile transmission or by email shall also be accepted by MCA and deemed dated on the day of receipt in our office if a paper copy of the Demand for Arbitration, with the filing fee, is received at the MCA office within 3 business days from the date of the electronic filing;

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5.  Demand for Arbitration shall comply with the following requirements:

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a)  Demand for Arbitration shall cite the agreement of the Parties providing for resolution of disputes and claims by Metro Construction Arbitration; a complete text of the agreement’s provision(s) for arbitration of claims and disputes shall be reproduced in the Demand for Arbitration;

b)  Demand for Arbitration shall state the name, the mailing address, the telephone number, and the email address of the Claimant, or of an officer or agent thereof authorized to receive service of process for the Claimant if such party is an association or a corporation;

c)  If the Claimant is represented by a counsel, Demand for Arbitration shall state the name, the mailing address, the telephone number, and the email address of the counsel;

d)  Demand for Arbitration shall provide a concise, narrative summary of the controversy between the parties, state the relief being sought by the Claimant and the sum of money for which an award may be made in case of default;

e)  Demand for Arbitration shall state that, unless the party served with it files in the court of competent jurisdiction an application to stay the arbitration within twenty days after such service, the party shall thereafter be precluded from objecting that a valid agreement for arbitration was not made or has not been complied with and from asserting in court the bar of a limitation of time;

f)  Prior to filing with MCA, the Demand for Arbitration shall be served on the respondent(s) and all necessary parties; an affirmation/affidavit of service must be appended to the Demand for Arbitration;

g)  The $300.00 filing fee must be paid to MCA at the time of filing the Notice of Claim; the filing fee is non-refundable.

 

6.  After serving and filing a Demand for Arbitration, the Claimant may, upon service on all other parties listed in the Demand, file with MCA an application for provisional remedies and/or interim awards;

 

     Upon receiving such an application, MCA shall appoint, at MCA’s sole discretion, the arbitrator who will consider the application. The arbitrator shall have the authority to issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitration proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action.

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     Before seeking enforcement of said order in a court of law, the Claimant shall serve the order granting such provisional remedies on the affected party and on all other parties listed in the Demand for Arbitration;

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7.  If a party served with a Demand for Arbitration contests arbitrability of the matter stated in the Demand, it shall file in the court of competent jurisdiction an application for stay of arbitration within twenty days after service upon him of the notice or demand. Notice of such application, with a complete copy thereof attached, shall be served in accordance with Rule 3 on all parties listed in the Demand for Arbitration. Notice of the application may also be served upon the Claimant’s attorney if the attorney's name appears on the Demand for Arbitration; such service shall be effected as prescribed by the applicable statute of the jurisdiction where the service is being made. Service of the application by mail shall be timely if such application is posted within the prescribed period.

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8.  If a party served with a Demand for Arbitration wishes to contest arbitrability of the matter stated in the Notice before an arbitrator, it may file with MCA a request to dismiss the Demand for Arbitration.

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a) A Request to Dismiss shall be filed not later than on the 10th day after the date of service of the Demand for Arbitration by personal delivery, by courier, or by any means of recorded delivery and deemed dated on the day of receipt in our office; filing by facsimile transmission or by email shall also be accepted by MCA and deemed dated on the day of receipt in our office if a paper copy of the Request to Dismiss, with the filing fee, is received at the MCA office within 3 business days from the date of the electronic filing;

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b)  A Request to Dismiss shall:

 

• state the reason(s) why the matter should not be arbitrated and state the facts and the law in support of the requesting party’s contentions; the proofs of the facts stated must be appended to the Request;

• state the name, the mailing address, and the telephone number of the party making the request, or of an officer or agent thereof authorized to receive service of process for the party if the party is an association or a corporation, or of the attorney representing the party,

• state the e-mail address or the fax number that should be used by MCA and the other parties in the matter to convey notices and/ or papers pertaining to the Request to Dismiss,

• state an unequivocal consent to service of all notices or papers pertaining to the Request to Dismiss by electronic transmission to the specified e-mail address or fax number, and

• be signed by the party making the Request or by its attorney;

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c)  A Request to Dismiss shall be served on the Claimant personally, and on all other parties named in the Demand for Arbitration – in accordance to Rule 3 of these Rules. Service of a Request to Dismiss shall also be deemed proper and sufficient when delivered to the office of the Claimant’s attorney named on the Demand for Arbitration by personal service, by registered mail; by certified mail; return receipt requested; by Federal Express, by facsimile transmission to the fax number of the attorney’s office or by email to the email address of the attorney indicated on the Demand for Arbitration;

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d)  Upon receipt of a Request to Dismiss with proof of service, MCA shall appoint an arbitrator for consideration of the Request. There shall be one arbitrator appointed at MCA’s sole discretion;

 

e)  The arbitrator shall schedule a hearing on the issues stated in the Request to Dismiss. The hearing shall be held not later than on the 19th day after the date of filing of the Demand for Arbitration. MCA shall give a notice of the hearing to the party requesting the dismissal and to the Claimant by e-mail or by fax not later than 8 days prior to the date of the hearing, and use reasonable efforts to provide timely notice of hearing to all other parties listed in the Demand for Arbitration;

 

f)  Upon receipt of the Notice of hearing, the Claimant may file with MCA an answer to the Request to Dismiss together with all documentary evidence it wishes the arbitrator to consider. The answer shall be filed with MCA by e-mail and contain an affirmation that it was served on the party requesting the dismissal by e-mail or fax indicated by that party for this purpose on the Request to Dismiss. The answer may be filed any time before the hearing or at the hearing;

 

g)  Where the Claimant files an answer, the Claimant and the party requesting the dismissal may jointly waive the hearing and authorize the arbitrator to make a decision on submissions;

 

h)  The arbitrator may extend the time limits stated in this Rule on application by any party if the Claimant and the party requesting dismissal of the Demand for Arbitration stipulate, in writing, that the date of filing said Demand for Arbitration shall be deemed postponed to the day immediately preceding the day of the arbitral decision on the Request to Dismiss. This extension may not be granted if the stipulated postponed date of filing of the Demand for Arbitration is beyond the applicable statute of limitations;

 

i)  The fee for filing a Request to Dismiss is $500; this fee shall be paid to MCA within 3 business days after the date of filing the Request to Dismiss, otherwise, the arbitrator may disregard the Request to Dismiss and cancel the hearing.

 

     The filing fee shall compensate MCA for the first 2 hours of the arbitrator’s work on the matter; if review of the Request to Dismiss and the evidence submitted with it and of the papers filed in opposition to the Request to Dismiss takes more than 2 hours or where it is apparent from the parties’ submissions that the hearing cannot be reasonably expected to be completed within the time covered by the filing fee, MCA shall promptly notify the party requesting the dismissal of the requirement to advance an additional fee, at the rate of $250 for each hour of the arbitrator’s work billed in 1/10th of hour increments, and stating the estimated fee. The party requesting the dismissal must pay the estimated additional fee before the day of the hearing or inform MCA and the opposing party/parties that it withdraws the Request to Dismiss. If the additional fee is not received by MCA by 1 pm on the last business day immediately preceding the date of the hearing, the Request to Dismiss shall be deemed withdrawn.

 

      If the Request to Dismiss is withdrawn before the hearing, MCA shall provide to the requesting party an account of the expenses occasioned by the filing of the Request, including the billable time of the arbitrator, and refund to the requesting party the balance of the filing fee.

 

      If the actual time spent by the arbitrator at the hearing and for making a decision on the Request to Dismiss differs from the time covered by the fee paid to MCA, the balance shall be promptly refunded to the party who paid the fees or the amount due shall be billed to it.

 

j)  If the arbitrator grants the Request to Dismiss, the Claimant may file in the court of competent jurisdiction an application to compel arbitration;

 

     If the arbitrator denies the Request to Dismiss, the requesting party may apply to the court of competent jurisdiction for stay of arbitration in accordance with the applicable law;

 

     Neither the filing of a Request to Dismiss or the answer to it, nor the participation in the hearing on a Request to Dismiss shall be considered a waiver of the party’s right to contest arbitrability of the parties’ dispute in a court of law.

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9.  Each Respondent named in the Demand for Arbitration shall notify MCA in writing whether it intends to defend the case.

 

      The Respondent’s Notice of Intent to Defend must be delivered to MCA by personal service, by courier, by any postal means of recorded delivery, by facsimile transmission, or by e-mail on or before the 21st calendar day after the date of service on the Respondent of the Demand for Arbitration or the Notice of Intent to Arbitrate.

 

       The Respondent’s notification shall be filed with an affidavit/affirmation of service upon Claimant effected in accordance with Rule 3 of these Rules, or upon the Claimant’s attorney listed on the Demand for Arbitration by any means of recorded delivery or by facsimile transmission to the fax number listed for the attorney’s office in said Demand;

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10.  If the Respondent’s Notice of Intent to Defend is not received in the MCA office on the 21st day after the date of service on the Respondent of the Demand for Arbitration, MCA shall issue a default warning giving the Respondent additional five business days to comply with the above Rule 9;

 

     The default warning, with a copy of the Demand for Arbitration, shall be served on the Respondent by personal service; MCA shall bill the costs of the service to the Claimant and include them in the calculation of the arbitration award.

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11.  If Respondent’s Notice of Intent to Defend is not received at the MCA office within five business days from the date of service of the default warning, MCA shall commence the arbitration on default:

 

a)  MCA shall appoint an arbitrator from the panel indicated on MCA’s website, which may be amended from time to time at MCA’s sole discretion. There shall be one arbitrator, appointed at MCA’s sole discretion, who shall decide the case in a fair and impartial manner;

 

b)  The arbitrator shall issue a Notice of Commencement and send it by certified mail with return receipt requested to all parties listed in the Demand for Arbitration;

 

c)  The Respondent’s failure to appear shall not entitle the Claimant to the relief requested automatically. On receipt of the Notice of Commencement, the Claimant shall deliver to MCA the proof of its claims within fourteen calendar days; the arbitrator shall have the authority to request from the Claimant additional proof of the claims and/or briefing at the arbitrator’s discretion; the arbitrator shall have the authority to extend the time for filing the Claimant’s proofs for good cause shown.

 

d)  The arbitrator shall issue the decision on Respondent’s default within fourteen calendar days from the date of completion of the Claimant’s proof.

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12.  After receipt of the Respondent’s Notice of Intent to Defend, MCA shall appoint an arbitrator. There shall be one arbitrator, appointed at MCA’s sole discretion.

 

        Any claim of conflict of interest and any other objections to the arbitrator appointed on the case must be stated and noticed to all parties promptly at the outset of the arbitration and shall be decided by MCA without causing an undue delay in the arbitration. If the arbitrator appointed on the case decides to recuse him/herself or is removed my MCA, MCA shall promptly appoint another arbitrator on the case or, if no arbitrator is available, so advise the parties in writing within seven calendar days after the recusal or removal of the originally appointed arbitrator.

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13.  The arbitrator shall issue a Notice of Commencement and send it by certified mail with return receipt requested to all parties listed in the Demand for Arbitration and in the Notice of Intent to Defend.

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PLEADINGS

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14.  Within thirty days of receiving a Notice of Commencement, the Claimant shall file with MCA a Statement of Claims setting forth, with reasonable particularity, the facts alleged to give rise to the dispute between the Parties and/or to the Claimant’s claims. The filing with MCA shall be by e-mail. Additionally,

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a)  Statement of Claims shall cite the agreement of the Parties providing for resolution of disputes and claims by Metro Construction Arbitration; a complete copy of the agreement shall be appended to the Statement of Claims;

b)  Statement of Claims shall state the claims presented for arbitration and the relief sought;

c)  Statement of Claims shall state whether the Claimant consents to accept all subsequent MCA notices and the opposing parties’ filings by e-mail (should this consent be unreasonably withheld, the arbitrator may bill the resulting costs of service to the Claimant and/or include them in calculation of the arbitral award);

d)  Prior to filing with MCA, the Statement of Claims shall be served on the Respondent(s) and other parties listed on the Notice of Commencement as required in Rule 3, or

• if the party entitled to service consents, in writing, to accept service by e-mail, by mail, or by any other means, then service may be by the means so specified, or,

• if an attorney has entered his/her appearance for a party, then service on the represented party may be by service on said attorney as prescribed by the rules of the jurisdiction where the service is being made;

An affidavit/affirmation of service must be appended to the Statement of Claims;

e)  With its Statement of Claims, the Claimant shall submit its proofs, including affidavits, documentary evidence and affidavits/reports of any experts already retained by that time.

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15.  Claims for contractual indemnity and/or waiver of subrogation in negligence lawsuits (involving personal injury or property damage) are subject to arbitration under these Rules only if the parties’ arbitration agreement specifically and expressly provides that said claims are subject to arbitration in this forum. An arbitration clause that merely provides for arbitration by MCA “of any and all disputes arising under the contract” shall not be sufficient to permit arbitration of contractual indemnity and/or waiver of subrogation claims. Because the right to contractual indemnity may be regulated by a statute, the parties are encouraged to state in their arbitration agreements the agreed-upon specific procedures, rules, or the scope of the arbitrator’s authority in deciding contractual indemnity and/or waiver of subrogation claims or disputes.

 

        If so provided in the parties’ arbitration agreement, claims for reimbursement of ECB fines or other government fines are also subject to arbitration under these rules.

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16.  Within thirty days after receiving the Claimant’s Statement of Claims and proofs, the Respondent shall file with MCA its own Statement of Claims or Defenses. The filing with MCA shall be by e-mail.

         In its Statement of Claims/Defenses, the Respondent shall

a)  state, with reasonable particularity, all objections to validity of the contract of the parties and all objections to arbitrability of the dispute not previously brought before the arbitrator;

b)  declare whether it admits or denies each of the factual allegations of the Claimant;

c)  state, with reasonable particularity, the facts it intends to prove in the arbitration;

d)  set forth all defenses to the claims brought against it;

e)  set forth its counterclaims and cross-claims, if any; and

f)  state whether the Respondent consents to accept all subsequent MCA notices and the opposing parties’ filings by e-mail (should this consent be unreasonably withheld, the arbitrator may include the resulting costs of service in calculation of the arbitral award)

g)  Prior to filing with MCA, the Respondent’s Statement of Claims/Defenses shall be served on the Claimant and on all other parties listed on the Notice of Commencement as required in Rule 3, or

• if the party entitled to service consents, in writing, to accept service by e-mail, by mail, or by any other means, then service may be by the means so specified, or,

• if an attorney has entered his/her appearance for a party, then service on the represented party may be by service on said attorney as prescribed by the rules of the jurisdiction where the service is being made;

An affidavit/affirmation of service must be appended to the Statement of Claims/ Defenses;

With its Statement of Claims/Defenses, the Respondent shall submit its proofs, including affidavits, documentary evidence and affidavits/reports of any experts already retained by that time.

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17  Where the Respondent asserts a cross-claim against a party which is contractually bound to arbitrate such a claim in this forum or expressly consents to its arbitration in this forum, the arbitrator shall, on application of that party, stay the proceedings as necessary to enable the cross-claim respondent to prepare and file its Statement of Claims/Defenses compliant with the above Rule 16;

 

18.  On application of a party, the arbitrator may extend the time for filing Statements of Claims /Defenses to provide the parties a reasonable opportunity to investigate the claims and defenses and to garner the evidence, unless any party demonstrates to the arbitrator’s satisfaction that the requested extension of time would result in undue prejudice to that party.

 

19.  After all parties have filed their Statements of Claims/Defenses and proofs, any party may apply summary disposition of the entire case, or of a particular claim, or of a particular issue. The arbitrator may decide a request for summary disposition of a claim or particular issue:

a) if all interested parties agree; or

b) if the party requesting summary disposition gives due notice to all other parties to the proceeding, and the other parties have a reasonable opportunity to respond.

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PRELIMINARY CONFERENCE

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20.  Upon receipt of the parties’ Statements of Claims/Defenses, the arbitrator shall schedule a preliminary conference and send a notice of the same to all parties not later than eight (8) days prior to the date of the conference. The preliminary conference may be re-scheduled on application of either party, at the discretion of the arbitrator.

 

21.  The mandate of this forum stems from the parties’ desire to obtain fair, time- and cost-effective resolution of their disputes. To these ends, the purposes of the preliminary conference are

• to clarify the issues in the case and the parties’ positions on said issues; and

• to provide for sufficient, expeditious and cost-effective discovery.

To achieve this goal, the arbitrator shall review the pre-conference submissions of the parties and determine, in his sole discretion, the agenda of the conference and the manner in which it will be conducted.

 

22.  In the Notice of Preliminary Conference, the arbitrator may direct the parties to exchange and to file with the arbitrator:

a)  the lists of witnesses they expect to call, including each witness’ contact information and the subject of that witness’ testimony;

b)  the list of expert witnesses, if any, including each witness’ contact information, professional credentials, and preliminary report;

c)  discovery requests, including requests for specific documents, interrogatories, requests for deposition, and/or requests for subpoenas, including subpoenas duces tecum;

d)  requests for admissions;

e)  statements of position on any issues raised by the parties filings or reasonably discerned in the matter by the arbitrator;

f)  the proposed schedules of discovery; and

g)  any other submissions the arbitrator deems proper.

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23.  The parties are encouraged to bring to the attention of the arbitrator any issues that are not addressed in the arbitrator’s Notice of preliminary conference and to place them on the agenda of the preliminary conference by means of motions, letter requests, memorandums, etc.

 

24.  All emails between a party and the arbitrator must be simultaneously sent to the other party. Any telephone conversations between a party and the arbitrator must be conference calls with participation of the opposing party. There shall be no ex parte communications.

 

25.  After the preliminary conference, the arbitrator must issue an order setting forth the scope, the approved methods, and the schedule of discovery that would meet the reasonable needs of the parties in obtaining evidence while controlling the time and the costs of the process; all subpoenas authorized by this tribunal shall be signed by the arbitrator and provided to the parties who requested them with the order of the preliminary conference;

 

26.  Where he deems it proper, the arbitrator may adjourn the conference for submission of briefs or memoranda.

 

27.  The arbitrator may request from the parties reports of compliance with the discovery order issued after the preliminary conference and may, sui sponte or on application of a party, schedule a compliance conference.

 

28.  The parties may request reasonable modifications of the discovery order if the discovered information and/or the circumstances cause the need to change the scope or the schedule of discovery.

 

PRE-HEARING CONFERENCE

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29.  Once the parties report completion of discovery or the time allotted to discovery ends, the arbitrator shall schedule the pre-hearing conference. The notice of the pre-hearing conference shall set the deadlines for filing with the arbitrator of

a)  motions;

b)  updated witness lists;

c)  expert witnesses’ credentials and reports;

d)  proffered exhibits,

e)  proposed findings of fact,

f)  proposed arbitral decision, and

g)  briefs in support of the proposed findings of fact and the proposed decision.

 

        Each party shall have no less than 10 days to file a brief in opposition to the other party’s  proposed findings of fact and/or decision.

 

20.  All filings and the proffered exhibits shall be submitted in electronic format, as searchable, paginated, indexed, and bookmarked PDF files with imbedded hyperlinks to cross-referenced documents.

 

31.  All objections to evidence, including any concerns about authenticity of a particular document, shall be raised before the pre-hearing conference, with enough notice to the opposing party to afford it a reasonable opportunity to prepare to answer said objections at the pre-hearing conference.

 

32.  The court rules of evidence shall not apply in arbitration. The arbitrator may consider hearsay and/or other objectionable evidence and give it as much weight as the arbitrator might deem proper, or may reject such evidence completely if, in the arbitrator’s judgment, its probative value is negligible or greatly outweighed by the unfair prejudice the admission of said evidence would cause to the opposing party;

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33.  At the pre-hearing conference, the arbitrator shall:

a)  rule on any objections to the proposed evidence;

b)  pre-mark the exhibits the parties will be permitted to submit into evidence;

c)  hear the parties’ arguments on any issue;

d)  inquire whether the parties would waive oral testimony of any expert witnesses and stipulate admission of said witnesses’ reports into evidence; and

e)  undertake any other action he/she deems proper.

 

34.  At the conclusion of the pre-hearing conference, the parties may jointly waive the merits hearing and stipulate that the arbitrator should decide the case on the extant record which shall be deemed to include the exhibits pre-marked by the arbitrator for submission into evidence. If the parties do not so stipulate, the arbitrator shall schedule the merits hearing.

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THE MERITS HEARING

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35.  The arbitrator may conduct the merits hearing in any order or manner he deems fair and proper. The arbitrator shall give each party a reasonable opportunity

• to be heard and present its case,

• to be represented by an attorney,

• to present witnesses and evidence proving its contentions,

• to cross-examine witnesses of the opposing party, and

• to proffer impeachment and/or rebuttal witnesses and/or evidence.

 

36.  The arbitral decision shall be in writing and signed and acknowledged by the arbitrator;

 

37.  Before publishing the decision, the arbitrator may schedule an inquest for tallying of all costs incurred and attorneys’ fees, for allocation of the arbitration fees, and for calculation of the award;

 

38.  The original signed and sealed decision and award shall be served upon the Claimant and the Respondent(s) personally or by certified mail, return receipt requested.

 

39.  The award may not violate any relevant provision of the parties’ agreement to arbitrate;

 

40.  If a prior written agreement of the parties authorizes award of attorney’s fees to the prevailing party but does not state the rate of said fees or limits the total amount of said fees, the arbitrator may, in his/her discretion, award such fees at the hourly rate not exceeding $300 per hour, regardless of the rate charged by the attorney to his/her client;

 

41.  On written application of a party filed with MCA within twenty days after delivery of the decision and award, the arbitrator may modify the award if

a)  there was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or

b)  the arbitrator has awarded upon a matter not submitted to arbitration and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

c)  the award is imperfect in a matter of form, not affecting the merits of the controversy.

 

         A written notice of the application for modification shall be given to all other parties to the arbitration. Written objections to modification must be filed with the arbitrator and served on all other parties to the arbitration within ten days of receipt of the notice. Service shall be effected in accordance with Rule 3 of these Rules.

 

        The arbitrator shall dispose of any application made under this section in writing, signed and acknowledged, within thirty days after either written objection to modification has been served on them or the time for serving said objection has expired, whichever is earlier.

The parties may in writing extend the time for such disposition either before or after its expiration.

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42.  The parties shall comply with the arbitrator’s directives and notices. The costs arising from non-compliance may be assessed by the arbitrator directly to the party at fault and/or included in calculation of the arbitral award;

 

43.  Absent compelling reasons to the contrary, all arbitration proceedings will be conducted virtually, by video conference, on a technical platform (like Zoom, Microsoft Teams, or Webex) selected by the arbitrator;

 

44.  The arbitrator shall maintain an audio record of all proceedings and provide the entire record or any part thereof to the parties upon request. The party wishing to obtain a transcript of the audio record may do so at its own expense. A transcript shall be submitted to the arbitrator for certification; it shall be deemed invalid and without any probative value absent the arbitrator’s certification.

 

45.  Either party, or the parties jointly, may engage a court reporter to record any arbitration proceeding. Transcripts produced by a court reporter shall be provided to the opposing party/parties and filed with the arbitrator. Within 10 days after the receipt of a transcript, both parties shall file their respective errata sheets with the arbitrator, who shall settle and certify the transcript. Absent the arbitrator’s certification, a transcript shall be deemed invalid and without any probative value;

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ARBITRATION FEES

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46.  The fee for arbitration shall be on an hourly basis at the rate of $250.00 per hour, billed in 1/10th of hour increments. Absent a different provision in the parties’ arbitration agreement, there shall be a presumption that the arbitration fee should be borne by the parties in equal shares. However, said presumption shall not limit the arbitrator’s complete authority to allocate the arbitration fees between the parties in any way the arbitrator would deem fair and proper;

 

47.  Except in the case of a default proceeding, upon receipt of a Notice of Commencement, each party shall deliver to MCA on the date set by the arbitrator a check for $4000 payable to Metro Construction Arbitration Inc.;

 

48.  MCA shall keep the received funds in escrow against the arbitrator’s fees and necessary expenses related to the case. MCA shall furnish to the parties bi-weekly or monthly statements reflecting the accrued fees and expenses, draw the corresponding amounts from the escrow and, when necessary, bill the parties for additional deposits into the escrow.

 

49.  The time spent by the arbitrator on any given matter shall be capped at eighty (80) hours, with the total fees of $20,000.00 plus any necessary expenses, unless the parties agree to extend the arbitrator’s time and make additional deposits into escrow.

 

50.  Should any provision of these Rules is found by a court of competent jurisdiction to be unenforceable, then said provision shall be deemed stricken, and the remainder of the Rules shall remain in full force and effect.

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