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THIS ARBITRATION AGREEMENT is made on the day of .
BETWEEN
- of ("Employer"),
- of ("Employee").
Background
As a condition of employment, or continued employment, the parties have voluntarily and knowingly entered into this Arbitration Agreement to avoid the burdens and delays associated with court actions.
THE PARTIES AGREE AS FOLLOWS:
1. The Arbitration
a. The Employee and Employer, on behalf of their successors, affiliates, heirs, and assigns, both mutually agree that any and all disputes and claims between them, including those concerning the Employee’s employment with Employer and any separation therefrom, and extending to including claims by Employee against Employer’s subsidiaries, affiliates, directors, agents, or employees shall be exclusively determined by final and binding arbitration before a neutral arbitrator as described herein, and that judgment upon the arbitrator’s award may be entered in any court of competent jurisdiction.
b. Except as otherwise expressly provided herein, Employer and Employee voluntarily waive any and all of their rights to trial in a court of law before a judge or before a jury on all claims between them.
c. Claims subject to arbitration under this Arbitration Agreement including, without limitation:
i. any claims for discrimination, retaliation, harassment;
ii. overtime, wages, benefits, or other compensation;
iii. any breach of express or implied contract;
iv. violation of public policy;
v. personal injury and other tort claims including fraud defamation, and emotional distress.
d. Claims excluded from this Arbitration Agreement are:
i. claims by Employee for workers’ compensation or unemployment benefits;
ii. claims by Employee for benefits under an Employer program or plan or that provides its own process for dispute resolution;
iii. claims by Employer or Employee for injunctive or declaratory relief concerning confidentiality, non-solicitation, non-competition, or similar obligations;
iv. any other claim which by law cannot be subject to an arbitration agreement; and
v. actions to enforce this Arbitration Agreement, compel arbitration, or enforce or vacate an arbitrator’s award under this Arbitration Agreement.
2. Selection of the Arbitrator
a. The party initiating recourse to arbitration (hereinafter referred to as "the claimant") shall give to the other party (hereinafter referred to as "the respondent") a notice of arbitration, which notice shall include:
i. a demand that the matter be referred to arbitration;
ii. the names and addresses of the parties;
iii. a reference to this arbitration clause; and
iv. a description of the nature and circumstances of the dispute giving rise to the claim(s) and a statement of the relief sought including, so far as is possible, an indication of any amount(s) claimed.
b. Unless otherwise agreed, the arbitration shall be in accordance with the UNCITRAL Arbitration Rules as at present in force. The arbitration will be held in or near the city in which Employee is or was last employed by Employer.
c. Within thirty (30) days of receipt of a notice of arbitration, the parties will select one (1) mutually agreeable arbitrator. if either party fails to appoint an arbitrator within 30 days of receiving notice of the appointment of an arbitrator by the other party, such arbitrator shall at the request of that party to be appointed by the at .
d. As soon as practicable after the appointment of the arbitrator, and in any event no later than 30 days after the appointment, the claimant shall deliver to the respondent (with copies to each arbitrator) a statement of the case, containing particulars of his claims and written submissions in support thereof, together with any documents relied on.
e. Within 30 days of the receipt of the claimant's statement of the case, the respondent shall deliver to the claimant (with copies to each arbitrator) a statement of the case in answer, together with any counterclaim and any documents relied upon.
f. Within 30 days of the receipt by the claimant of any statement of counterclaim by the respondent, the claimant may deliver to the respondent (with copies to each arbitrator) a reply to counterclaim together with any additional documents relied upon.
g. As soon as practicable after its constitution, the arbitrator shall convene a meeting with the parties or their representatives to determine the procedure to be followed in the arbitration.
h. The procedure shall be as agreed by the parties or, in default of agreement, as determined by the tribunal. However, the following procedural matters shall in any event be taken as agreed:
i. the language of the arbitration shall be [language];
ii. the tribunal may in its discretion hold a hearing and make an award in relation to any preliminary issue at the request of either party and shall do so at the joint request of both parties;
iii. the tribunal shall hold a hearing, or hearings, relating to substantive issues unless the parties agree otherwise in writing;
iv. the tribunal shall use its best endeavours to issue its final award within 60 days of the last hearing of the substantive issues in dispute between the parties.
i. In the event of default by either party in respect of any procedural order made by the tribunal, the arbitrator shall have power to proceed with the arbitration and to make its award.
j. The arbitrator shall be professional, impartial and neutral in regards to all matters in relation to or arising out of the Arbitration.
k. The arbitrator will conduct the hearing as expeditiously as possible, while ensuring that all Parties have the opportunity to present evidence and arguments and ensuring that the Agreement is followed.
l. The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and
conformity to legal rules of evidence shall not be necessary.
3. The Arbitration Award
a. The arbitrator shall issue his/her award after the conclusion of the arbitration unless otherwise agreed to by the Parties or otherwise specified by law. The award shall state the reasons for the award.
b. The arbitration award shall be in writing and signed by the arbitrator. The decision will be in writing and signed by the arbitrator. Unless otherwise agreed to by the Parties, the decision will include a summary of claims arbitrated and decided, a reasoned opinion setting forth any findings of fact or conclusions of law, and damages and other relief (if any) granted.
c. The arbitrator may impose any deemed necessary sanctions against either party, or the parties' lawyers for failure to comply with any of the terms and conditions of this Arbitration Agreement.
d. The decision is final and binding on both parties and shall be executed in the manner required by law. Any appeal of the decision to a court shall be limited except in exceptional circumstances where the arbitrator is found to be fraudulent.
4. Conflict of Interest
a. The arbitrator must, prior to the commencement of the arbitration, disclose to the Parties to the best of the arbitrator's knowledge any prior dealings with any of the Parties as well as any interest in the Dispute.
b. If in the course of the arbitration the arbitrator becomes aware of any circumstances that might reasonably be considered to affect the arbitrator's capacity to act impartially, the arbitrator must immediately inform the Parties of these circumstances. The Parties will then decide whether the mediation will continue with that arbitrator or with a new arbitrator appointed by the Parties.
5. Cooperation by the Parties
a. The Parties agree to cooperate in good faith with the arbitrator and each other during the arbitration.
6. Legal Representation and Language Interpreter
a. At the Arbitration, each Party may be accompanied by one or more persons, including language interpreters or legally qualified persons, to assist and advise them.
b. The Parties utilizing such services are responsible for making and paying all fees and other arrangements directly with the legal counsel and/or interpreter, subject to applicable law.
7. Authority to Arbitrate
a. The Parties agree to attend the Arbitration with the authority to settle within any range that can reasonably be anticipated.
8. Confidentiality and without prejudice status
a. Every person involved in the Arbitration:
i. will keep confidential all information arising out of or in connection with the Arbitration, including the fact and terms of any settlement, but not including the fact that the Arbitration is to take place or has taken place or where disclosure is required by law to implement or to enforce terms of settlement; and
ii. acknowledges that all such information passing between the Parties and the arbitrator, however communicated, is agreed to be without prejudice to any Party's legal position and may not be produced as evidence or disclosed to any judge or other decision-makers in any legal or other formal processes, except where otherwise disclosable in law
b. Where a party privately discloses any information in confidence to the arbitrator, before, during or after the Arbitration, the arbitrator will not disclose that information to any other party or person without the consent of the party disclosing it, unless otherwise required by law.
c. The Parties will not call the arbitrator as a witness, nor require him or her to produce in evidence any records or notes relating to the Arbitration, in any litigation or other formal process arising from or in connection with their dispute and the Arbitration nor will the arbitrator act or agree to act as a witness, expert, mediator or consultant in any such process. If any party does make such an application, that party will fully indemnify the arbitrator in respect of any costs incurred in resisting and/or responding to such an application, including reimbursement at the arbitrator's standard
hourly rate for the arbitrator's time spent in resisting and/or responding to such application.
9. Fees and costs of the Arbitration
a. Employer will pay all costs unique to arbitration (in comparison to the costs of adjudicating the same claims before a court or relevant agency), including the customary and regular arbitration fees and expenses.
b. However, if Employee is the party initiating the claim, Employee will be responsible for contributing an amount equal to the filing fee to initiate the claim in the filing for the arbitration.
c. Each party will be responsible for paying its own attorneys’ fees and any costs that are not specifically unique to the arbitration (costs that each party would incur if the claim(s) were litigated in a court or relevant agency such as costs to issue subpoenas and/or documents; take depositions and purchase transcripts; copy documents; etc.).
d. Any dispute as to where a cost is special to the arbitration, it shall be resolved by the arbitrator. The arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party to the same extent a court or agency would be entitled to do so, in accordance with applicable law.
10. Governing Law of the Arbitration
.
11. Termination of the Arbitration
a. A Party may terminate the Arbitration at any time after consultation with the arbitrator.
b. The arbitrator may terminate the Arbitration if, after consultation with the Parties, the arbitrator feels unable to assist the Parties to achieve resolution of the Dispute.
12. Amendment of this Agreement
a. All agreed changes to this Agreement shall not be valid until they are made in writing and signed by or on behalf of each of the parties.
13. Severability
a. If any part of this Agreement is held to be void or unenforceable, the remainder of the Agreement will be enforceable and any part may be severed from the remainder as appropriate, to the extent permitted by law.
14. Entire Agreement Clause
a. This Agreement contains the entire agreement between the parties and supersedes any prior written or oral agreement between them.
15. No rights under Contracts (Rights of Third Parties) Ordinance
a. A person who is not a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Ordinance to enforce any of its terms.
IN WITNESS HEREOF the parties and the arbitrator signed this Arbitration Agreement on the day and year first above written.
