Rule 1. INTENT AND OVERVIEW
Rule 1.A Intent
The Judicate West ("JW") Commercial Arbitration Rules (the "Rules") (Rev. March 2014) are designed to
promote a just, speedy, economical and enforceable resolution of disputes through the use of arbitration.
"Arbitrator", as used through these rules refers to a single arbitrator or a panel of arbitrators, depending upon the
context. JW Arbitrators render a decision or award based upon the evidence presented and the applicable law.
Rule 1.B Commitment to Efficient Resolution of Disputes
The JW Rules for commercial arbitration are designed to provide principled resolution of disputes between all
parties. These Rules require the parties and the arbitrator to use their best efforts to submit the dispute for
decision within six months after the initial case management conference ("CMC"), and make the final award
within one month after the close of the arbitration hearing. Counsel for the parties and the parties themselves are
expected to cooperate fully with the arbitrator and with each other so that the arbitral proceedings will be
conducted with civility and efficiency. Working with the parties' counsel to avoid unreasonable cost and delay,
discovery will be shaped by the arbitrator to appropriately fit the circumstances of the case.
Rule 2. JURISDICTION
Rule 2.A General
Rule 2.A.1 When These Rules Will Apply
When a contract between the parties states that the JW Commercial Arbitration Rules will be used to resolve
disputes between the parties, or a contract provides for disputes to be resolved through arbitration by JW without
specifying the rules to be utilized, or a contract does not state how disputes will be resolved and the parties agree
to modify their agreement to provide for arbitration by JW, or two or more parties without a written contract
between them agree to submit their dispute for resolution through arbitration by JW, then these Rules, with any
written modifications agreed to by the parties and approved by the arbitrator, will apply. The arbitral
proceedings will be conducted in accordance with these Rules, as they exist at the time arbitration is initiated
(See Rule 4.C.4 Date Arbitration Commences).
Rule 2.A.2 Arbitration Pursuant to Other Rules or Laws
When a contract specifies that a dispute between the parties will be resolved pursuant to rules or laws other than
these JW Commercial Arbitration Rules, or the parties agree to an arbitration process pursuant to rules or laws
other than these JW Commercial Arbitration Rules, then JW will administer the arbitration pursuant to the rules
or laws designated in the contract or selected by the parties. However, the parties may at any time before the
commencement of the initial CMC (Rule 7.A.) elect in writing to have these Rules apply.
Rule 2.A.3 Modification of Rules and Resolution of Conflicts
The parties, with the approval of the arbitrator, may establish their own arbitration rules, or modify in writing
any aspect of the governing rules. The rules chosen by the parties will govern the conduct of the arbitral
proceedings, unless any of the rules conflict with a mandatory provision of applicable law, in which event that
provision of law will prevail. If these Rules, or any other rules specified or agreed to by the parties, fail to
address any issue(s) that arise(s) during any phase of the arbitral proceedings, the arbitrator will determine the
procedure to quickly and efficiently resolve the issue(s).
Rule 2.A.4 Interpretation and Application of the Rules
The arbitrator will resolve disputes about the interpretation and applicability of these Rules, including those
related to the arbitrator's powers and duties. The resolution of issues by the arbitrator will be final.
Rule 2.B Pre-dispute Arbitration Agreement
The parties may incorporate the JW Rules into an agreement when the contract is being drafted (or at any time
before a dispute arises). The parties may specify in their agreement whether they wish to agree to arbitration
or a multi-step dispute resolution process utilizing mediation and arbitration by including one of the following
pre-dispute clauses or any similar language:
Rule 2.B.1 Dispute Resolution Through Arbitration
Any dispute, claim or controversy arising out of or relating to this contract, including the scope,
interpretation, breach or validity thereof, will be resolved by binding arbitration administered by JW, in
accordance with the JW Commercial Arbitration Rules, by (a sole arbitrator) [or] (a panel of three
arbitrators). Judgment on the award rendered by the arbitrator(s) may be entered by any court having
jurisdiction. The place of the arbitration will be (city, state).
Rule 2.B.2 Multi-Step Dispute Resolution Process
Any dispute, claim or controversy arising out of or relating to this contract, including the scope,
interpretation, breach or validity thereof, will be administered by JW in [insert city or county for dispute
resolution] and resolved pursuant to this multi-step Dispute Resolution process.
As a first step, the parties will engage in non-binding mediation. The parties agree to split the fees and
costs of the mediation equally. If the parties cannot agree on a Mediator within 14 calendar days of
requesting mediation, the Mediator will be selected in the same manner in which an arbitrator is
selected (Rule 5, et seq.). The mediation will be completed within 60 days of the selection of the
Mediator unless otherwise agreed upon by the parties in writing. The mediation will be conducted
pursuant to, and governed by, California Evidence Code Sections 1115-1129
Should the mediation process fail to resolve any issue(s), the parties agree to submit any remaining
dispute(s) to (binding arbitration) [or] (private judging process). Each party will bear the expense of
the (arbitral proceedings) [or] (private judging process) equally unless otherwise agreed upon. The
arbitral proceedings will be governed by the JW Commercial Arbitration Rules in effect at the time of the
arbitration. Any award of the Arbitrator(s) may be entered as a judgment in any court having
Rule 2.C Post-Dispute Arbitration Agreement
The parties may agree to arbitration pursuant to these JW Commercial Arbitration Rules by modifying, amending,
or adding to an existing agreement or contract the following post-dispute clause or any similar language:
Notwithstanding any other dispute resolution process that may be set forth in the attached agreement of
the parties ("the Underlying Agreement"), we, the undersigned parties, agree to submit any and all
disputes between us related to the Underlying Agreement to be resolved by binding arbitration
administered by JW, in accordance with the JW Commercial Arbitration Rules, by (a sole arbitrator)
[or] (a panel of three arbitrators). Judgment on the award rendered by the arbitrator(s) may be entered
by any court having jurisdiction. The place of the arbitration will be (city, state).
Rule 2.D Judicate West Is Not Giving Legal Advice
The sample clauses contained in these rules are to aid parties and their counsel in drafting contracts and
should be considered in consultation with the advice of legal counsel. JW will not give legal advice, and is
not giving legal advice as to the precise language to be used nor its meaning or effect.
Rule 2.E Delegation and Challenges to Jurisdiction
Rule 2.E.1 Delegation of Powers and Responsibilities
By agreeing to the applicability of these Rules, the parties delegate to Judicate West and the arbitrator
selected, the power and responsibility to resolve all administrative issues, disputes, and related matters
relevant to the subject matter embraced by their agreement and to arbitrate to the fullest extent permitted by
applicable law, except as otherwise agreed by the parties and provided for in writing to Judicate West at the
outset of the engagement for the arbitration proceeding.
Rule 2.E.2 Disputes about Arbitrator Jurisdiction and Arbitrability
To the fullest extent permitted under applicable law, disputes as to the jurisdiction of the arbitrator and
arbitrability of any issue, including disputes regarding the existence, scope, or validity of the agreement, or
any part thereof, that is the basis for the arbitration or any other disputes, will be heard and determined by the
arbitrator. In any challenges to jurisdiction, the arbitration clause will be considered separable from the
remaining provisions of any agreement of which it forms a part.
Rule 2.E.3 Time for Challenging Arbitrator Jurisdiction
Any challenges to the jurisdiction of the arbitrator, except challenges based on the award, must be made by
the date the Response by Respondent is due, or, with respect to a counterclaim, the date the Reply to the
Counterclaim is due; provided, however, that if a Claim or Counterclaim is added or amended later pursuant
to Rule 4.C.5 (below), any jurisdictional challenge must be based upon new matters raised and made by the
date the Response to such claim or the Reply to the Counterclaim is due.
Rule 3. COMMUNICATION
Rule 3.A Notices and Communications
Notices or other communications under these Rules must be in writing and sent to the address specified in
writing by the recipient or, if no address has been specified, to the last known business or residence address of
the recipient. Notices and communications may be given by any means that provides a written record. The
burden is on the sending party to assure that the arbitrator, the JW arbitration administrative team, and all
parties receive the notice or communication.
Rule 3.B Date of Receipt of Communications
Communications will be deemed received and time periods will start to run as follows: DATE OF
TRANSMISSION for communications transmitted by electronic mail, facsimile transmission, or by handdelivery
by no later than 6:00 pm in the venue of the arbitration hearing; DATE OF DELIVERY for overnight
delivery; THREE DAYS AFTER MAILING for communications sent via U.S. Mail. If the date a
communication will be deemed received falls on a weekend or court holiday in the place the communication
is received, then the date of receipt will be on the next business day in the place the communication is
received. Proof of transmission is prima facie evidence of proof of service / receipt of any notice or
communication sent under these Rules.
Rule 4. COMMENCING THE ARBITRATION PROCESS
Rule 4.A Representation By Counsel
The parties should be represented by licensed attorneys of their choice. Promptly and in writing, each party
will provide contact information, including the name, address, telephone number, fax number and e-mail
address for its attorney(s), to the other parties, the arbitrator and to JW. Upon change, replacement or
substitution, the party(ies) involved will update that information immediately. JW reserves the right to
decline administration of any matter, or cease administration of any matter, where one or more parties are not
represented by counsel. If for any reason any party to the arbitration ceases to be represented by counsel, the
arbitrator, in his or her sole discretion, may suspend or terminate the arbitration, unless doing so would
unduly prejudice a party, or unless the arbitrator determines that in the interests of justice and equity the
arbitration should proceed.
Rule 4.B Agreed Submission Of Dispute
Parties to any existing dispute may elect to arbitrate some or all of the issues in their dispute using these Rules by submitting to JW a written agreement to arbitrate containing the following information:
- The names and addresses of all parties and their attorneys;
- A statement of election to proceed under these Rules;
- A statement of the general nature of the claim(s), counterclaim(s), issue(s) or dispute(s);
- Any relief or remedy(ies) sought;
- The hearing location requested; and
- The signatures of all parties.
Rule 4.C Initiating Arbitral Proceedings
Rule 4.C.1 Notice of Intent to Arbitrate
When one party, unilaterally, commences arbitration (the "Claimant"), that party will serve a written Notice
of Intent to Arbitrate ("NIA") on the other party(ies) (the "Respondent(s)").
Rule 4.C.2 Required Information for Notice
- The full names and addresses of all parties and, to the extent known, their attorneys
- A statement describing the general nature of the claim or dispute, including its factual basis
- A demand that the dispute be arbitrated
- The text of the arbitration clause or the separate arbitration agreement that is involved
- The relief or remedy(ies) sought; and
- Proof of service/receipt of the NIA
Rule 4.C.3 Commencing the Proceeding with Judicate West
To begin the process with JW, the Claimant is to send the NIA in conformity with Rule 3.A. and file a copy
with JW sent to the attention of the Arbitration Administrator together with payment of the applicable JW
administrative and case management fees.
Rule 4.C.4 Date Arbitration Commences
The arbitration is commenced as to any Respondent on the date the NIA is deemed received by the
Respondent, pursuant to Rule 3.B.
Rule 4.C.5 Amending a Claim
Claims within the scope of the arbitration clause may be added, amended or withdrawn before the arbitrator is
appointed, and thereafter only with the consent of all other parties or after obtaining the approval of the
arbitrator. Copies of Amended Claims are to be served on all other parties and filed with JW sent to the
attention of the Case Manager.
Rule 4.D Responding to a Claim or Counterclaim
Rule 4.D.1 Time for Filing a Response or a Reply
Within 30 days after receipt of the NIA or 20 days after receipt of a Counterclaim, a Response or Reply may
be served that sets forth the general and specific defenses asserted. If no Response or Reply is served within
these time frames, all claims in the NIA or Counterclaim will be deemed denied. Failure to serve a Response
or Reply will not delay the arbitral proceedings. The Response to a Claim or the Reply to a Counterclaim
must be served on all parties and a copy filed with JW sent to the attention of the Case Manager.
Rule 4.D.2 Asserting a Counterclaim
The Respondent or Counterclaim Respondent may include in its Response or Reply any Counterclaim within
the scope of the arbitration clause.
Rule 4.D.3 Required Information for a Counterclaim
- The full names and addresses of all parties and, to the extent known, their attorneys;
- A statement describing the general nature of the counterclaim or dispute, including its factual basis;
- A demand that the dispute be arbitrated;
- The relief or remedy(ies) sought; and
- Proof of service/receipt of the Response and Counterclaim.
Rule 4.D.4 Amending a Counterclaim
Counterclaims within the scope of the arbitration clause may be added, amended or withdrawn before the
arbitrator is appointed, and thereafter only with the consent of all other parties or after obtaining the approval
of the arbitrator. Copies of Amended Counterclaims are to be sent to all other parties and filed with JW sent
to the attention of the Case Manager.
Rule 5. SELECTING AND CHALLENGING AN ARBITRATOR
Rule 5.A Selecting an Arbitrator
Rule 5.A.1 Arbitrators are Independent and Impartial
Each arbitrator will be independent and impartial and will be bound by these Rules.
Rule 5.A.2 Number of Arbitrators
If the arbitration agreement does not specify the number of arbitrators, the dispute will be heard and
determined by one arbitrator. Before appointment of a single arbitrator, all parties may agree to a panel of
three arbitrators. Absent an agreement to the contrary between the parties, the three arbitrators will select one
of their number to serve as Chairperson, who will conduct routine status hearings, hear and determine all
motions and procedural disputes, and rule on evidentiary matters and other motions during the arbitration
hearing. However, any potentially dispositive motions will be heard by the entire panel.
Rule 5.A.3 Process for Selecting an Arbitrator
- If the parties have agreed on the arbitrator to be appointed, that arbitrator will be notified and follow the
procedures in Rule 5.A.4.
- When two or more claimants in a case have aligned interests in the outcome of the claims in dispute, they
will be treated as a single party for purposes of the arbitrator selection process. A claimant with a
divergent interest to the other claimant(s) will be treated as a separate party. The same applies to cases
with more than one respondent; respondents with aligned interests in the outcome of the claims in dispute
will be treated as a single party for purposes of the arbitrator selection process. Any dispute as to the
number of parties will be resolved by JW.
- Single Arbitrator Cases
- In single arbitrator cases, involving two parties (as defined in 5.A.3 b.) JW will provide the parties with
a list of five arbitrators it deems qualified. In matters where there are three or more parties, JW will
provide a list of arbitrators that exceeds by one the maximum number of possible strikes permitted per
rule 5.A.3 c.2. below.
- Within 20 calendar days of receiving the list of prospective arbitrators, each party, independently and
simultaneously, will strike up to two of those arbitrators and rank the remaining names on the list by
order of preference (1 indicates first choice).
- JW will then select the arbitrator to be appointed based on the comparative rankings of the parties, with
the highest ranked (the lowest combined numbers) being the preferred arbitrator.
- Three Arbitrator Panel Cases
- Unless the parties otherwise agree or the contract otherwise states, in two-party cases (as defined in
5.A.3 b.) utilizing a three-arbitrator panel, JW will follow the above procedures but will provide a list of
seven arbitrators, with each party striking up to two and ranking those remaining. In matters where
there are three or more parties, JW will provide a list of arbitrators that exceeds by three the maximum
possible number of strikes permitted by the above rule.
- The three arbitrators ranked highest (the lowest combined numbers) will be selected.
- The three arbitrators selected will decide which arbitrator will serve as the Chairperson unless they
request that JW make that determination.
- In cases utilizing a three-arbitrator panel where the contract so provides or the parties otherwise agree,
the parties may each appoint one arbitrator and either jointly select the third or ask the two initially
appointed arbitrators to select the third arbitrator. It is strongly recommended that the arbitrators not
know which party appointed them, unless the contract provides otherwise. In any case, all arbitrators
are neutral, and are not advocates for the appointing party.
- If a party fails to participate in the above selection procedures, or if for any other reason the above
selection procedures fail to result in the selection of the appropriate number of arbitrators, JW will
appoint the arbitrator or arbitrators it deems qualified to serve.
Rule 5.A.4 Acceptance by the Arbitrator
- JW will promptly notify the arbitrator of the selection and will provide the arbitrator copies of the claim
and/or any information JW has regarding the case and the identities of the parties, their attorneys and any
- Within 10 calendar days of being advised of the selection, the selected arbitrator will notify JW in writing
of acceptance of the appointment and provide the disclosures required by law for the parties. The
disclosures to be made include any circumstances that might cause a reasonable person to question the
arbitrator's independence or impartiality, such as any bias, any interest in the outcome of the arbitration,
or any past or present relationship with the parties or their representatives.
- JW will promptly forward all arbitrator's disclosures to the parties and will notify the parties of the
appointment. JW will also disclose to the parties the applicable fee arrangement for the selected arbitrator
at the time of appointment.
Rule 5.B Replacing or Challenging an Arbitrator
Rule 5.B.1 Arbitrator's Limited Continuing Disclosures
If circumstances arise that could cause a reasonable person to question the arbitrator's independence or
impartiality, including any bias, any interest in the outcome of the arbitration, or any past or present
relationship with the parties, their representatives, or any witnesses, the arbitrator will promptly disclose those
circumstances, where required by law, to JW and all parties.
Rule 5.B.2 When an Arbitrator May Be Challenged
Any arbitrator may be challenged if circumstances exist or arise that give rise to a legitimate question
regarding that arbitrator's independence or impartiality. In order to prevent delay and potential prejudice, all
parties are urged to conduct customary due diligence regarding the suitability of the arbitrator at the time the
initial disclosures are received. Challenges made after an arbitrator has made a ruling on a substantive or
contested procedural matter are disfavored.
Rule 5.B.3 Process for Challenging an Arbitrator
- A party may challenge an arbitrator only by giving notice in writing to JW, with a copy to the arbitrator
and the other parties, no later than 15 days after the challenging party (i) receives notification of the
appointment of that arbitrator and any disclosures made by that arbitrator, or (ii) becomes aware of
circumstances that lead to a legitimate question regarding the arbitrator's independence or impartiality.
- The challenge will state with specificity the circumstances and rationale that raise a legitimate question
about the arbitrator's neutrality.
- The arbitrator will be replaced if the other party agrees to the challenge or if the arbitrator voluntarily
withdraws. A replacement arbitrator will be selected pursuant to the process specified in Rule 5.A.3.
- If neither agreed disqualification nor voluntary withdrawal occurs, JW will provide the non-challenging
party and the arbitrator an opportunity to comment on the challenge. JW will then assign three neutrals,
not including the appointed arbitrator, from its panel to decide the challenge based on the merits and the
interests of justice, without charge to the parties.
- If a replacement of the arbitrator occurs when there is only one arbitrator, the existing arbitration will
immediately terminate and a new arbitration proceeding will be scheduled by the replacement arbitrator.
In a three arbitrator panel, the two other arbitrators will have the power, in their discretion, to continue the
arbitration until a replacement arbitrator is appointed to join the continuing proceedings, unless the parties
agree otherwise. If the two other arbitrators decide not to continue the arbitration without the
participation of a third arbitrator, or the parties agree that a third arbitrator must participate, the arbitral
proceedings will pause until selection of a replacement third arbitrator.
Rule 5.B.4 Arbitrator May Be Replaced for Failure to Perform
- If an arbitrator fails to enter a ruling, or for any reason is prevented from performing the functions of an
arbitrator, such as death, incapacity or resignation, a replacement arbitrator will be chosen using the
selection process in Rule 5.A.3. Any unearned arbitrator fees on deposit will be applied to the replacement
arbitrator. If the parties do not agree on whether the arbitrator has failed to act or is prevented from
performing the functions of an arbitrator, any party may request that JW make that determination. JW will
then assign three neutrals from its panel to make that determination based on the merits and the interests of
justice, without charge to the parties. If the panel determines a replacement arbitrator is required, a
replacement arbitrator will be selected pursuant to the process specified in Rule 5.A.3.
- If a sole arbitrator fails to enter a ruling and must be replaced, the existing arbitration will immediately
terminate and a new arbitration proceeding will be scheduled by the replacement arbitrator. In a three
arbitrator panel, the two other arbitrators will have the power, in their discretion, to continue the arbitration
until a replacement arbitrator is appointed to join the continuing proceedings, unless the parties agree
otherwise. Until the third arbitrator can be replaced, the two arbitrators will conduct routine status
hearings, hear and determine all motions and procedural disputes, and rule on evidentiary matters and
other motions, however, any potentially dispositive motions will only be heard by the entire panel. If the
two remaining arbitrators decide not to continue the arbitration without the participation of a third
arbitrator, or the parties agree that a third arbitrator must participate, the arbitral proceedings will pause
until selection of a replacement third arbitrator.
Rule 6. COMMUNICATIONS WITH AN ARBITRATOR
Rule 6.A No Ex Parte Communications
No party, or anyone on behalf of a party, may have any ex parte or unsolicited communication with the
arbitrator concerning any matter relating to the arbitration, except as provided in Rules 7.B.1 and 7.B.3.
Should any party, or anyone acting on behalf of any party, communicate directly with an arbitrator in violation
of this Rule, or should the content of any such communication be considered by the arbitrator to be an attempt
to prejudice the arbitral proceedings, the arbitrator may impose such sanctions, or take such other action, as the
arbitrator deems appropriate.
Rule 6.B Filing Papers with the Arbitrator
Unless the arbitrator requests otherwise, it is strongly recommended that all motions, briefs, and other papers
to be filed with the arbitrator be submitted by e-mail directly to the arbitrator, with copies to the case manager
and all other parties. All motion papers will be deemed "served" in accordance with Rule 3.B. Lengthy briefs
on discovery matters should be avoided. However, separate statements and responses regarding the specific
issues to be decided are encouraged in discovery and summary judgment matters. In most cases, the
submission of brief letters will sufficiently inform the arbitrator with regard to the issues to be decided.
Rule 7. CASE MANAGEMENT CONFERENCE
Rule 7.A Initial Case Management Conference
The arbitrator will conduct as soon as practicable, and absent extraordinary circumstances, within 20 days of
appointment, an initial CMC either telephonically, or in person, for the planning and scheduling of the arbitral
proceedings. Matters to be addressed during the initial CMC may include any or all of the following:
- Clarification of issues and claims;
- Discussion of the types and scope of discovery appropriate for management of the case. This will include
the scheduling of the informal exchange of documents and information (Rule 8.A.1), which should take
place within 30 days of the Initial CMC, and scheduling other additional discovery, if any. Discovery is
to be limited consistent with the objective of an expedited, economical resolution of the dispute and
avoiding discovery that is unduly burdensome, as detailed in Rule 8;
- Compilation and organization of exhibit books or joint exhibit books, including uniformity of exhibit
- Allowance, scheduling and exchange of any dispositive motions;
- Exchange of lists of lay and expert witnesses expected to be called as witnesses at the arbitration hearing;
- Exchange of exhibits the parties expect to offer at the arbitration hearing;
- Exchange of pre-hearing briefs;
- Retention of a reporter, at the requesting party's cost, to make a record of the arbitration hearing;
- Scheduling an arbitration readiness conference, if appropriate, at least 45 days before the arbitration
- Scheduling the arbitration hearing date(s) and fixing the place of the arbitration hearing.
Rule 7.B Additional Case Management Conferences
At the request of any party, or at the discretion of the arbitrator, additional CMCs may be convened as
necessary for the efficient management of the arbitration
Rule 7.B.1 Requesting an Additional Case Management Conference
If, at any time, a party believes there is an issue that requires the involvement of the arbitrator, that party may
send an email or other written communication to the arbitrator, with a copy to all other parties and the case
manager, stating that a telephonic or in person CMC is desired, and setting forth in no more than one sentence
the general subject matter of the issue. The communication will contain no argument, reasons, criticism or
other substantive material, only the notification that a CMC is desired.
Rule 7.B.2 Hearing Procedure
Upon receipt of an e-mail request for an additional CMC, the arbitrator or case manager will arrange a
telephonic or in person CMC at the earliest convenient time. The arbitrator will conduct a brief informal
hearing by telephone or in person, at the election of the arbitrator, to determine if the matter can be resolved
or the issues narrowed. For any remaining unresolved issue(s), the arbitrator, with input from the parties, will
determine the briefing schedule for any motion, if needed, pursuant to Rule 9 below.
Rule 7.B.3 Process Not Applicable if Irreparable Harm
The provisions of Rule 7 do not apply to ex parte applications involving irreparable harm or other true
emergencies that cannot reasonably wait for a CMC to take place. In case of an emergency or urgent
problem, the party should contact the JW Case Manager and seek an immediate telephonic hearing with the
arbitrator and all other parties. The arbitrator has the discretion to proceed, ex parte or with fewer than all
parties participating, to address the issue(s) involving irreparable harm or other urgent circumstances.
Rule 8. DISCOVERY
To avoid the unreasonable costs and delays often caused by excessive discovery, these Rules are intended to
actively involve the arbitrator in shaping discovery to appropriately fit the circumstances of the case. At the
initial CMC (Rule 7.A.) the arbitrator will custom tailor the discovery process, limiting or expanding
discovery, to meet the needs of the case, recognizing that the complexity of the case will have an effect on the
types and scope of discovery. In general, the parties may conduct the discovery to which they agree, subject
to the overriding discretion of the arbitrator. To aid the parties in preparing to discuss permissible discovery
at the initial CMC, the following is a flexible framework for discovery that the arbitrator, after consultation
with the parties, may reduce or expand.
Rule 8.A Informal Exchange of Information
The foundation of the discovery framework is the efficient discovery of pertinent information by means of an
informal exchange of information, as scheduled at the initial CMC (See Rule 7.A.).
Rule 8.A.1 Mandatory Informal Exchange of Non-Privileged Information
The parties, in good faith, will exchange all non-privileged documents and other information (including
electronically stored information) on which they intend to rely in support of their position in the dispute or
claim, including copies of all such documents and other information in their possession, custody, or control,
and names of individuals whom they may call as witnesses at the arbitration hearing. The arbitrator may
modify these obligations at the initial or a subsequent CMC.
Rule 8.A.2 Continuing Obligation to Update Information
As the parties become aware of new documents or information, all parties will continue to be under an
obligation to supplement the exchange of documents and information described in Rule 8.A.1. Documents
that were not previously exchanged, and witnesses and experts that were not previously identified, will not be
received into evidence at the hearing, unless agreed upon by the parties or upon a showing of good cause as
determined by the arbitrator.
Rule 8.B Additional Discovery
Depending on the complexity of the case, limited additional discovery to facilitate the parties' development of
the case and preparation for the arbitration hearing may be appropriate. The framework for discovery
described in rules 8.B.1 - 8.B.3 is general and may be further restricted by the arbitrator or by agreement of
the parties, or it may be expanded by the arbitrator upon a showing of good cause.
Rule 8.B.1 Written Discovery
In addition to the aforementioned exchange requirements, the parties may also propound twenty (20) special
interrogatories (without subparts) and twenty (20) requests for production of documents, electronic or hard
copy. Document requests will (1) be limited to documents that are directly relevant to the matter(s) in dispute
or to its outcome; (2) not include broad phrases, such as "all related documents;" and (3) not be encumbered
by extensive "definitions" or "instructions." Any production of electronic documents will only be from
sources used in the ordinary course of business, unless agreed by the parties or on a showing of good cause.
Rule 8.B.2 Depositions
Each party (or side, if there is more than one party on each side) may take one deposition, as a matter of right.
The deposition will be completed in one day, absent unusual circumstances. The parties will agree on the
date, time, location and duration of the deposition; or if the parties are unable to agree these issues will be
determined by the arbitrator upon the request of any party. The necessity of any additional depositions will
be determined by the arbitrator based on all relevant circumstances, the availability of other discovery
options, and whether the need for the information is sufficient to justify the time and expense associated with
the requested deposition.
Rule 8.B.3 Requests For Admissions
A party may propound unlimited Requests for Admission focused on the authentication of documents and
twenty (20) Requests for Admission focused on establishing uncontroverted foundational facts.
Rule 8.B.4 Expert Discovery
In matters where the testimony of experts is expected, and unless the arbitrator orders otherwise, the parties
will exchange expert reports 60 days before the arbitration hearing. Each party has the right to depose each
expert witness designated to testify. The parties will complete the deposition of each expert in one day at
least 30 days before the arbitration hearing, absent unusual circumstances. The parties will agree on the date,
time, location and duration of each expert's deposition; or if the parties are unable to agree these issues will
be determined by the arbitrator upon request of any party.
Rule 8.B.5 Witness Subpoenas
At any time during the proceedings, at the request of a party or on the arbitrator's own determination, the
arbitrator may issue subpoenas for the attendance of witnesses or the production of documents or other
evidence by any person or entity, pursuant to any applicable statutory provision. Any party requesting
issuance of a subpoena will, at the time of the request, send a copy of the completed subpoena request to all
Rule 8.C Arbitrator Will Resolve all Discovery Disputes
The arbitrator will resolve any disputes regarding discovery on an expedited basis, pursuant to the procedures
specified in Rules 7.B. and 9. The arbitrator has the discretion and power, if good cause is shown, to order
the taking of depositions, or the propounding of written discovery. The arbitrator may issue sanctions or shift
costs among the parties as a condition of permitting requested discovery. Where there is a panel of three
arbitrators, and absent an agreement to the contrary between the parties, the Chairperson is authorized to hear
and determine discovery issues and disputes.
Rule 8.D Confidentiality
The arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, and
other sensitive information conveyed by exchanges of information or through discovery. Unless the parties
agree otherwise, the parties, the arbitrator and JW will treat the arbitral proceedings, any related disclosures
and/or discovery, and the decisions of the arbitrator, as confidential, except in connection with judicial
proceedings ancillary to the arbitration, such as a judicial challenge to, or enforcement of, an award, or unless
otherwise required by law or to protect a legal right of a party. To the extent possible, any specific issues of
confidentiality should be raised with and resolved by the arbitrator.
Rule 9. MOTIONS
The steps below will be followed in connection with all motions:
Rule 9.A Meet and Confer
Before initiating any motion, counsel for all interested parties must conduct a meaningful meet-and-confer in
an attempt to resolve the matter. One good-faith discussion by phone or in person is required in all cases,
including ex parte applications. An extended exchange of self-serving letters is discouraged and insufficient
in and of itself to satisfy the party's meet and confer obligation. Instead, once a good faith effort is made to
resolve the issue, and the issue remains, it should be promptly brought before the arbitrator, so the matter is
not delayed due to unresolved issues.
Rule 9.B Case Management Conference (CMC)
If the meet-and-confer does not resolve the issue, a CMC will be held in accordance with Rule 7.B.
Rule 9.C Formal Motions
Only if the CMC (See Rule 7.B.) does not completely resolve the issues may a formal motion be submitted.
The motion briefing schedule will be set by the arbitrator pursuant to Rule 7.B.2, and may include opposition
and reply papers at the discretion of the arbitrator. Although strict compliance will normally be expected, the
parties will also be expected to cooperate reasonably regarding short extensions under appropriate
circumstances. The arbitrator need not be consulted regarding such extensions, but must be advised thereof
by email or other writing.
Rule 9.D Hearing on the Motion(s)
Once all papers are submitted, the arbitrator will inform the parties if a hearing would be helpful in ruling on
the motion and will arrange a hearing date and time at the earliest convenience. The arbitrator will conduct a
hearing by telephone or in person, at the election of the arbitrator. The parties cannot unilaterally postpone
Rule 9.E Arbitrator's Decision
The arbitrator will promptly rule on the motion after the hearing or last submission, if there is no hearing,
absent unusual circumstances. In appropriate cases, the arbitrator may apportion the arbitrator's fee in
connection with the motion proceeding in accordance with the interests of justice. In addition, sanctions may
be awarded based upon the statutory provisions governing sanctions, or as permitted by these Rules. No
apportionment or sanctions will be made or awarded without a hearing in which that issue is addressed.
Rule 10. MEDIATION OR SETTLEMENT DISCUSSIONS
Any party may propose, or agree to, settlement discussions or formal mediation at any time. The arbitrator
may suggest that the parties explore settlement at appropriate times.
Rule 10.A Arbitrator Will Not Be Involved in Settlement Discussions
The parties may ask the arbitrator to recommend another neutral to assist them in reaching settlement. The
arbitrator assigned to the case will not act as the mediator or aid the parties in settlement discussions.
Rule 10.B Consent Award
At any stage of the arbitral proceedings, if all parties agree on settlement of any aspect of the dispute,
upon request, the arbitrator may memorialize the agreement in a Consent Award in consultation with the
Rule 11. ARBITRATION READINESS CONFERENCE
The Arbitration Readiness Conference will occur on the date designated at the initial CMC, unless modified
by the arbitrator, or at the request of a party upon a showing of good cause. Matters to be addressed during
the arbitration readiness conference may include the following:
- The status of any outstanding discovery.
- The preparation, exchange and submission of Exhibit Books or Joint Exhibit Books and any
demonstratives to be used at the arbitration hearing.
- The expected order of witnesses to testify at the arbitration hearing and that all appropriate subpoenas
have been issued.
- Any pre-trial motions affecting the presentation of evidence, or other matters affecting the arbitration
- The estimated number of days for the arbitration hearing and consideration of any necessary adjustments.
- Whether one or more parties requests a record to be made by a reporter, at the cost of the requesting
- Any presentation of testimony by affidavit, declaration or video/telephone appearance.
- Any mediation, negotiations, or other potential cause for delay or settlement.
- Any other special needs or requirements the parties anticipate.
Rule 12. ARBITRATION HEARING
The parties and the arbitrator will use their best efforts to assure that, absent unusual circumstances, the
dispute will be submitted to the arbitrator for decision within six months after the initial CMC.
Rule 12.A Order of Proof
The order of proof generally will be similar to that of a court trial, provided that the arbitrator may bifurcate
issues or modify the order of proof to facilitate a swift and economic resolution or for the convenience of
non-party witnesses. The arbitration hearing will be conducted in an expeditious manner and as
economically as practicable.
Rule 12.B Applicable Law
The arbitrator will be guided by, but not necessarily bound by, the substantive law agreed to by the parties in
the written agreement that is the basis for the arbitration, or agreed to by the parties at any time prior to the
conclusion of the Arbitration Readiness Conference pursuant to Rule 11. Absent such an agreement by the
parties, the arbitrator will be guided by the substantive law the arbitrator determines to be appropriate.
Rule 12.C Rules of Evidence
The arbitrator is not required to conform strictly to the rules of evidence used in judicial proceedings. The
arbitrator will determine the admissibility, relevance, materiality and weight of the evidence offered.
Rule 12.C.1 Privilege
The arbitrator will apply applicable law pertaining to attorney-client privilege, other privileges and work
product. The arbitrator will determine the applicability of any privilege, waiver or immunity.
Rule 12.C.2 Use of Declarations, Affidavits, Telephone or Video Testimony
Testimonial evidence that does not permit cross-examination of the witness is discouraged, but may be
permitted at the discretion of the arbitrator. Any party seeking permission to present evidence by declaration,
affidavit, telephone testimony or video conferencing will notify all other parties, the arbitrator, and JW at the
earliest possible time in order to give ample time for objections to be considered and an appropriate order to
be made by the arbitrator. The arbitrator will make orders that are appropriate, consistent with efficient case
management and the interests of justice.
Rule 12.C.3 Testimony of Witnesses
The arbitrator is empowered to administer the oath to witnesses and will require witnesses to testify under
penalty of perjury.
Rule 12.C.4 Exclusion of Witnesses
The arbitrator has the discretion to determine the propriety of the attendance at the hearing of any person
other than the parties and their representatives, including the discretion to exclude a witness during the
testimony of any other witness or at any other time.
Rule 12.D Time Limits
The arbitrator has the power to impose time limits the arbitrator determines to be reasonable on each phase of
the hearing, including without limitation the time allotted to each party for presentation of its case and for
rebuttal. In setting time limits, the arbitrator will manage the proceedings appropriately to conclude the
arbitral proceedings as economically and expeditiously as practicable without compromising fairness.
Rule 12.E Postponement of Hearings
The arbitrator may postpone any hearing on request of any party, or all parties, for good cause shown, or on
the arbitrator's own initiative. The parties cannot unilaterally postpone any hearing. Postponement is
discouraged due to the considerable difficulty of rescheduling. Postponement or cancellation within 45 days
of the hearing may affect refunds or credits of fees paid or due.
Rule 12.F Failure of a Party to Appear at the Hearing
The arbitrator has the discretion to have the arbitration hearings proceed in the absence of any party that fails
to appear. An award will not be made based on the failure of a party to be present, or based on any other
default of the absent party. Rather, a party will be entitled to an award based on a claim or defense only if
sufficient evidence is presented to the arbitrator in support of such an award. The arbitrator will require the
parties to appear to present such evidence as the arbitrator may require for the making of an award.
Rule 12.G Closing the Hearing
When the arbitrator determines, after inquiry of the parties, that there are no further witnesses, evidence, or
proofs to be presented, the arbitrator will declare the hearing closed. However, if post-hearing briefs are to be
filed, or if counsel are to make closing arguments, and unless the arbitrator determines otherwise, the hearing
will be deemed closed as of the date of receipt of the briefs or at the conclusion of closing arguments,
whichever is later. The time limit for the arbitrator to make the award will begin on the date the hearing is
closed, unless the parties agree otherwise.
Rule 12.H Re-opening the Hearing
At any time before the award is made, on application of a party where good cause is shown or on the
arbitrator's own initiative when deemed appropriate by the arbitrator, the arbitrator may re-open the hearing,
in which event the arbitrator will set a new date for the close of the hearing. The arbitrator shall have the
authority to shift costs among the parties in the interests of justice as a condition of permitting the reopening
of the hearing.
Rule 13. REMEDIES AND AWARDS
Rule 13.A Remedies During the Arbitral Proceedings
At the request of a party, the arbitrator may order such interim measures as deemed necessary and
appropriate, including injunctive relief and measures for the preservation of assets or records or for the
conservation of goods or other property. The arbitrator may require appropriate security as a condition of
ordering such measures. A request for interim measures by a party to a court will not be deemed
incompatible with the agreement to arbitrate, or to constitute a waiver of that agreement.
Rule 13.B Final Award
In addition to the final award, the arbitrator may make initial, preliminary, partial and supplemental awards.
With respect to any initial, preliminary or partial award, the arbitrator may state in the award whether or not
the award is final for purposes of further judicial proceedings.
Rule 13.B.1 Issuance of the Award
The award, following the arbitration hearings, will be made no later than 30 days from the date of close of the
hearings, unless the parties agree to a later date, or unless there is good cause for the arbitrator to extend the
time for making the award. The award will be in writing, will determine each claim and the relief, if any, as to
each claim, and will state concisely the reasons on which the award is based, unless the parties agree
otherwise. In making the award, the arbitrator will be guided by, but not necessarily bound by, the substantive
law applicable to the arbitration as set out in Rule 12.B. When there are three arbitrators, the award will be
made and signed by at least two of the arbitrators. Executed copies of the award and of any dissenting opinion
will be delivered by JW to the parties. JW has the right to withhold an award from all parties until all
requisite fees and deposits owed by the parties have been paid in full. If JW withholds an award for this
reason, the arbitrator will be deemed to have good cause to extend the time for making the award, and in any
event, the award will not be rendered tardy or invalid.
Rule 13.B.2 Any Appropriate Remedy or Relief Allowed
The arbitrator may grant any remedy or relief determined to be appropriate, including but not limited to
specific performance of a contract, injunctive relief, and/or an award of attorneys' fees and costs pursuant to a
contract provision for same or applicable statutory authority. The arbitrator may also make an award of
punitive damages, if such an award is within the scope of the agreement of the parties and is permissible
under the law applicable to the dispute.
Rule 13.B.3 Interest
The arbitrator may award such pre-award and post-award interest as determined appropriate, taking into
consideration the contract and applicable law.
Rule 13.B.4 Determination of Prevailing Party
In appropriate cases, the award will identify the prevailing party or parties, if any, for purposes of allocating
the costs associated with the proceedings and dealing with any issues of punitive damages or attorneys fees.
These matters will usually be the subjects of supplemental proceedings. See Rule 13.C.
Rule 13.B.5 Correction of an Award
Within 10 days after service of the award, any party, in accordance with Rule 3.B. may give notice to the
arbitrator, the JW arbitration administrator, and the other parties, and request that the arbitrator correct any
clerical, typographical or computation errors, or any errors of a similar nature in the award, or make an
additional award as to specific Claims or Counterclaims presented in the arbitration but not determined in the
award. The request must be sent at least via electronic mail to all parties, the arbitrator, and the JW
arbitration administrator. The burden is on the requesting party to assure that the arbitrator, the JW
arbitration administrator, and all parties receive the notice of the request for a correction of an award within
the 10 day timeframe, and failure of the arbitrator, JW or any party to receive the notice of the request may
constitute waiver of the request. The other parties will have 10 days to respond to the request. The arbitrator
will make any correction or additional award the arbitrator deems justified within 30 days of initial service of
the award. Unless the arbitrator notifies the parties within 30 days of the initial service of the award that
additional time is required to consider the request for correction, the request will be deemed denied if the
arbitrator does not respond to the request within 30 days of service of the award. The process repeats, if
warranted, allowing a party, within 10 days after delivery of the corrected or additional award to the parties,
to request a correction or additional award, 10 days for other parties to respond, and within 30 days from
service of the corrected award for the arbitrator to make any further corrections and additional awards. The
arbitrator, on his or her own initiative, as appropriate, may make any correction or additional award within
30 days of the service of the award. All corrections, and additional awards will be in writing, and the
provisions of this Rule as to awards will apply to them. The arbitrator automatically retains jurisdiction
indefinitely to hear an application from any party to remove from any award information asserted to be
confidential and not essential to the award.
Rule 13.B.6 Finality of Award
The award, including any amendments, will be considered final and binding on the parties in accordance with
the time provisions of Rule 13.B.5. The parties will undertake promptly to carry out the award without delay.
The parties to the arbitration will be deemed to have consented that judgment on the award may be entered in
any federal or state court having jurisdiction.
Rule 13.B.7 Filing of Award
The parties are responsible for filing the award with a court of competent jurisdiction and any confirmation or
Rule 13.C Post Award Proceedings
If, in the discretion of the arbitrator, the nature of the proceeding requires post-award proceedings to consider
punitive damages, attorney's fees, costs, or other supplemental or additional elements to the final award, the
arbitrator shall clearly so provide in the language of the interim award and may provide for such additional
proceedings by personal appearance or telephone conference. Once the supplemental or additional
proceedings are concluded, the arbitrator shall make a final award that includes the entire award in the
arbitration. After consultation with the parties, the arbitrator will order the scheduling of any additional
briefing, testimony, or hearings that the arbitrator deems appropriate and necessary.
Rule 13.D Penalties for Failure to Comply with Rules and Provisions
Rule 13.D.1 Failure to Comply
Whenever a party fails to comply with these Rules, or any order of the arbitrator pursuant to these Rules, in a
manner deemed material by the arbitrator, the arbitrator may fix a reasonable period of time for compliance.
If the party does not comply within said period, the arbitrator may impose any remedy the arbitrator deems
just, including payment of costs, exclusion of evidence, determination of an issue, or in the most extreme
circumstances, an award on default. Before entering an award on default, the arbitrator will require nondefaulting
parties to produce such evidence and legal argument in support of their contentions as the arbitrator
may deem appropriate. The arbitrator may receive such evidence and argument without the defaulting party's
presence or participation.
Rule 13.D.2 Waiver of Objections
A party knowing of a failure to comply with any provision of these Rules, or of any requirement of the
arbitration agreement or any direction of the arbitrator, and neglecting or failing to state its objections
promptly, waives any objection thereto.
Rule 14. DEPOSITS
JW may request each party to deposit an appropriate amount as an advance for the costs of the arbitral
proceedings incurred by the parties, including hearing fees, expenses of the arbitrator for time spent for other
than hearing time ("retainer") and the administrative/case management fees of JW. During the course of the
proceedings, JW may request supplementary deposits from the parties, as appropriate. Any such amounts will
be held and disbursed in such a manner as is necessary and appropriate to compensate the arbitrator for fees
and expenses, and JW for its fees, and as otherwise directed by the arbitrator.
Rule 14.A Failure to Make Sufficient Deposits
If the deposits requested by JW are not paid in full by the date stated on the invoice, JW may inform the other
parties in order that jointly or severally they may make the requested deposits. If the requested deposits are
not made, JW or the arbitrator may suspend or terminate the arbitral proceedings.
Rule 14.B Return of Unused Deposits
After the arbitral proceedings have been concluded, JW will return to the parties any unexpended balance of
the retainer deposits as may be appropriate.
Rule 14.C Return or Destruction of Documents After Hearing
Within 10 days after the arbitral proceedings have been concluded ("the request period"), a party may request
return of that party's documents and JW will arrange for return of said documents. If no request is received
within the 10 day period then JW will destroy said documents.