10308. Selection of Arbitrators
This rule is no longer applicable. NASD Rule 10308 has been superseded by FINRA Rule 10308. Please consult the appropriate FINRA Rule.
This Code will be superseded by the Customer Code (Rule 12000 Series) and the Industry Code (Rule 13000 Series) on April 16, 2007, for claims filed on or after that date. This Code will remain in effect, however, for cases filed before April 16, 2007.
(a) Definitions
(1) "day"
For purposes of this Rule, the term "day" means calendar day.
(2) "claimant"
For purposes of this Rule, the term "claimant" means one or more persons who file a single claim.
(3) "Neutral List Selection System"
The term "Neutral List Selection System" means the software that maintains the roster of arbitrators and performs various functions relating to the selection of arbitrators.
(4) "non-public arbitrator"
The term "non-public arbitrator" means a person who is otherwise qualified to serve as an arbitrator and:
(A) is, or within the past 5 years, was:
(i) associated with, including registered through, a broker or a dealer (including a government securities broker or dealer or a municipal securities dealer);
(ii) registered under the Commodity Exchange Act;
(iii) a member of a commodities exchange or a registered futures association; or
(iv) associated with a person or firm registered under the Commodity Exchange Act;
(B) is retired from, or spent a substantial part of a career, engaging in any of the business activities listed in subparagraph (4)(A);
(C) is an attorney, accountant, or other professional who has devoted 20 percent or more of his or her professional work, in the last two years, to clients who are engaged in any of the business activities listed in subparagraph (4)(A); or
(D) is an employee of a bank or other financial institution and effects transactions in securities, including government or municipal securities, and commodities futures or options or supervises or monitors the compliance with the securities and commodities laws of employees who engage in such activities.
(5) "public arbitrator"
(A) The term "public arbitrator" means a person who is otherwise qualified to serve as an arbitrator and:
(i) is not engaged in the conduct or activities described in paragraphs (a)(4)(A) through (D);
(ii) was not engaged in the conduct or activities described in paragraphs (a)(4)(A) through (D) for a total of 20 years or more;
(iii) is not an investment adviser;
(iv) is not an attorney, accountant, or other professional whose firm derived 10 percent or more of its annual revenue in the past 2 years from any persons or entities listed in paragraph (a)(4)(A);
(v) is not employed by, and is not the spouse or an immediate family member of a person who is employed by, an entity that directly or indirectly controls, is controlled by, or is under common control with, any partnership, corporation, or other organization that is engaged in the securities business;
(vi) is not a director or officer of, and is not the spouse or an immediate family member of a person who is a director or officer of, an entity that directly or indirectly controls, is controlled by, or is under common control with, any partnership, corporation, or other organization that is engaged in the securities business; and
(vii) is not the spouse or an immediate family member of a person who is engaged in the conduct or activities described in paragraphs (a)(4)(A) through (D).
(B) For purposes of this Rule, the term "immediate family member" means:
(i) a person's parent, stepparent, child, or stepchild;
(ii) a member of a person's household;
(iii) an individual to whom a person provides financial support of more than 50 percent of the individual's annual income; or
(iv) a person who is claimed as a dependent for federal income tax purposes.
(6) "respondent"
For purposes of this Rule, the term "respondent" means one or more persons who individually or jointly file an answer to a complaint.
(7) "send"
For purposes of this Rule, the term "send" means to send by first class mail, facsimile, or any other method available and convenient to the parties and the Director.
(b) Composition of Arbitration Panel; Preparation of Lists for Mailing to Parties
(1) Composition of Arbitration Panel
(A) Claims of $50,000 or Less
If the amount of a claim is $50,000 or less, the Director shall appoint an arbitration panel composed of one public arbitrator, unless the parties agree to the appointment of a non-public arbitrator.
(i) If the amount of a claim is $25,000 or less and an arbitrator appointed to the case requests that a panel of three arbitrators be appointed, the Director shall appoint an arbitration panel composed of one non-public arbitrator and two public arbitrators, unless the parties agree to a different panel composition.
(ii) If the amount of a claim is greater than $25,000 and not more than $50,000 and a party in its initial filing or an arbitrator appointed to the case requests that a panel of three arbitrators be appointed, the Director shall appoint an arbitration panel composed of one non-public arbitrator and two public arbitrators, unless the parties agree to a different panel composition.
(B) Claims of More Than $50,000
If the amount of a claim is more than $50,000, the Director shall appoint an arbitration panel composed of one non-public arbitrator and two public arbitrators, unless the parties agree to a different panel composition.
(2) One List for Panel of One Arbitrator
If one arbitrator will serve as the arbitration panel, the Director shall send to the parties one list of public arbitrators, unless the parties agree otherwise.
(3) Two Lists for Panel of Three Arbitrators
If three arbitrators will serve as the arbitration panel, the Director shall send two lists to the parties, one with the names of public arbitrators and one with the names of non-public arbitrators. The lists shall contain numbers of public and non-public arbitrators, in a ratio of approximately two to one, respectively, to the extent possible, based on the roster of available arbitrators.
(4) Preparation of Lists
(A) Except as provided in subparagraph (B) below, the Neutral List Selection System shall generate the lists of public and non-public arbitrators on a rotating basis within a designated geographic hearing site and shall exclude arbitrators based upon conflicts of interest identified within the Neutral List Selection System database.
(B) If a party requests that the lists include arbitrators with expertise classified in the Neutral List Selection System, the lists may include some arbitrators having the designated expertise.
(5) Sending of Lists to Parties
The Director shall send the lists of arbitrators to all parties at the same time approximately 30 days after the last answer is due.
(6) Information About Arbitrators
The Director shall send to the parties employment history for each listed arbitrator for the past 10 years and other background information. If a party requests additional information about an arbitrator, the Director shall send such request to the arbitrator, and shall send the arbitrator's response to all parties at the same time. When a party requests additional information, the Director may, but is not required to, toll the time for the parties to return the ranked lists under paragraph (c)(2).
(c) Striking, Ranking, and Appointing Arbitrators on Lists
(1) Striking and Ranking Arbitrators
(A) Striking An Arbitrator
A party may strike one or more of the arbitrators from each list for any reason.
(B) Ranking — Panel of One Arbitrator
Each party shall rank all of the arbitrators remaining on the list by assigning each arbitrator a different, sequential, numerical ranking, with a "1" rank indicating the party's first choice, a "2" indicating the party's second choice, and so on.
(C) Ranking — Panel of Three Arbitrators
Each party shall rank all of the public arbitrators remaining on the list by assigning each arbitrator a different, sequential, numerical ranking, with a "1" rank indicating the party's first choice, a "2" indicating the party's second choice, and so on. Each party separately shall rank all of the non-public arbitrators remaining on the list, using the same procedure.
(2) Period for Ranking Arbitrators; Failure to Timely Strike and Rank
A party must return to the Director the list or lists with the rankings not later than 20 days after the Director sent the lists to the parties, unless the Director has extended the period. If a party does not timely return the list or lists, the Director shall treat the party as having retained all the arbitrators on the list or lists and as having no preferences.
(3) Process of Consolidating Parties' Rankings
The Director shall prepare one or two consolidated lists of arbitrators, as appropriate under paragraph (b)(2) or (b)(3), based upon the parties' numerical rankings. The arbitrators shall be ranked by adding the rankings of all claimants together and all respondents together, including third-party respondents, to produce separate consolidated rankings of the claimants and the respondents. The Director shall then rank the arbitrators by adding the consolidated rankings of the claimants, the respondents, including third-party respondents, and any other party together, to produce a single consolidated ranking number, excluding arbitrators who were stricken by any party.
(4) Appointment of Arbitrators
(A) Appointment of Listed Arbitrators
The Director shall appoint arbitrators to serve on the arbitration panel based on the order of rankings on the consolidated list or lists, subject to availability and disqualification.
(B) Discretion to Appoint Arbitrators Not on List
If the number of arbitrators available to serve from the consolidated list is not sufficient to fill a panel, the Director shall appoint one or more arbitrators to complete the arbitration panel. Unless the parties agree otherwise, the Director may not appoint a non-public arbitrator under paragraphs (a)(4)(B) or (a)(4)(C). The Director shall provide the parties information about the arbitrator as provided in paragraph (b)(6), and the parties shall have the right to object to the arbitrator as provided in paragraph (d)(1).
(5) Selecting a Chairperson for the Panel
The parties shall have 7 days from the date the Director sends notice of the names of the arbitrators to select a chairperson. If the parties notify Dispute Resolution staff prior to the expiration of the original deadline that they need more time in which to reach an agreement, Dispute Resolution staff will extend the time to select a chairperson for an additional 8 days. If the parties cannot agree within the allotted time, the Director shall appoint a chairperson from the panel as follows:
(A) The Director shall appoint as the chairperson the public arbitrator who is the most highly ranked by the parties as long as the person is not an attorney, accountant, or other professional who has devoted 50% or more of his or her professional or business activities, within the last two years, to representing or advising public customers in matters relating to disputed securities or commodities transactions or similar matters.
(B) If the most highly ranked public arbitrator is subject to the exclusion set forth in subparagraph (A), the Director shall appoint as the chairperson the other public arbitrator, as long as the person also is not subject to the exclusion set forth in subparagraph (A).
(C) If both public arbitrators are subject to the exclusion set forth in subparagraph (A), the Director shall appoint as the chairperson the public arbitrator who is the most highly ranked by the parties.
(6) Additional Parties
If a party is added to an arbitration proceeding before the Director has consolidated the other parties' rankings, the Director shall send to that party the list or lists of arbitrators and permit the party to strike and rank the arbitrators. The party must return to the Director the list or lists with numerical rankings not later than 20 days after the Director sent the lists to the party. The Director shall then consolidate the rankings as specified in this paragraph (c).
(d) Disqualification and Removal of Arbitrator Due to Conflict of Interest or Bias
(1) Disqualification By Director
After the appointment of an arbitrator and prior to the commencement of the earlier of (A) the first pre-hearing conference or (B) the first hearing, if the Director or a party objects to the continued service of the arbitrator, the Director shall determine if the arbitrator should be disqualified. If the Director sends a notice to the parties that the arbitrator shall be disqualified, the arbitrator will be disqualified unless the parties unanimously agree otherwise in writing and notify the Director not later than 15 days after the Director sent the notice.
(2) Removal by Director
After the commencement of the earlier of (A) the first pre-hearing conference or (B) the first hearing, the Director may remove an arbitrator from an arbitration panel based on information that is required to be disclosed pursuant to Rule 10312 and that was not previously disclosed.
(3) Standards for Deciding Challenges for Cause
The Director will grant a party's request to disqualify an arbitrator if it is reasonable to infer, based on information known at the time of the request, that the arbitrator is biased, lacks impartiality, or has an interest in the outcome of the arbitration. The interest or bias must be direct, definite, and capable of reasonable demonstration, rather than remote or speculative.
(4) Vacancies Created by Disqualification or Resignation
Prior to the commencement of the earlier of (A) the first pre-hearing conference or (B) the first hearing, if an arbitrator appointed to an arbitration panel is disqualified or is otherwise unable or unwilling to serve, the Director shall appoint from the consolidated list of arbitrators the arbitrator who is the most highly ranked available arbitrator of the proper classification remaining on the list. If there are no available arbitrators of the proper classification on the consolidated list, the Director shall appoint an arbitrator of the proper classification subject to the limitation set forth in paragraph (c)(4)(B). The Director shall provide the parties information about the arbitrator as provided in paragraph (b)(6), and the parties shall have the right to object to the arbitrator as provided in paragraph (d)(1).
(e) Discretionary Authority
The Director may exercise discretionary authority and make any decision that is consistent with the purposes of this Rule and the Rule 10000 Series to facilitate the appointment of arbitration panels and the resolution of arbitration disputes.
(f) Challenges by Customers
In cases involving public customers, any close questions regarding arbitrator classification or challenges for cause brought by a customer will be resolved in favor of the customer.
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Amended by SR-NASD-2006-136 eff. Jan. 15, 2007. Amended by SR-NASD-2005-094 eff. Jan. 15, 2007. Amended by SR-NASD-2004-164 eff. March 9, 2005 with a delayed operational date [Approval Order]. Amended by SR-NASD-2004-39 eff. Sept. 17, 2004. Amended by SR-NASD-2003-95 eff. July 19, 2004. Amended by SR-NASD-2004-87 eff. June 7, 2004. Amended by SR-NASD-2000-34 eff. Feb. 12, 2001. Amended by SR-NASD-98-64 eff. Nov. 17, 1998. Amended by SR-NASD-98-48 eff. Nov. 17, 1998. Amended by SR-NASD-97-22 eff. Nov. 17, 1998. Amended eff. July 1, 1986; Apr. 1, 1988; May 10, 1989; Oct. 7, 1992. Selected Notice: 98-90; 01-13; 04-49; 04-61; 06-64. |