S.B. No. 1439
AN ACT
1-1 relating to the nonsubstantive codification of provisions relating
1-2 to arbitration.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 10, Revised Statutes, is redesignated as
1-5 Chapters 171 and 172, Title 7, Civil Practice and Remedies Code,
1-6 and amended to read as follows:
1-7 CHAPTER 171. <TITLE 10--ARBITRATION>
1-8 <1. TEXAS> GENERAL ARBITRATION <ACT>
1-9 Sec. 171.001 <Art. 224>. Validity of arbitration agreements.
1-10 A written agreement to submit any existing controversy to
1-11 arbitration or a provision in a written contract to submit to
1-12 arbitration any controversy thereafter arising between the parties
1-13 is valid, enforceable and irrevocable, save upon such grounds as
1-14 exist at law or in equity for the revocation of any contract. A
1-15 court shall refuse to enforce an agreement or contract provision to
1-16 submit a controversy to arbitration if the court finds it was
1-17 unconscionable at the time the agreement or contract was made.
1-18 Provided, however, that none of the provisions of this chapter
1-19 <Act> shall apply to:
1-20 (a) any collective bargaining agreement between an
1-21 employer and a labor union;
1-22 (b) any contract for the acquisition by an individual
1-23 person or persons (as distinguished from a corporation, trust,
1-24 partnership, association, or other legal entity) of real or
2-1 personal property, or services, or money or credit where the total
2-2 consideration therefor to be paid or furnished by the individual is
2-3 $50,000 or less, unless said individual and the other party or
2-4 parties agree in writing to submit to arbitration and such written
2-5 agreement is signed by the parties to such agreement and their
2-6 attorneys; or
2-7 (c) any claim for personal injury except upon the
2-8 advice of counsel to both parties as evidenced by a written
2-9 agreement signed by counsel to both parties. A claim for workers'
2-10 compensation shall not be submitted to arbitration under this
2-11 chapter <Act>.
2-12 Sec. 171.002 <Art. 225>. Proceedings to compel or stay
2-13 arbitrations. (a) <Sec. A.> On application of a party showing an
2-14 agreement described in Section 171.001 <Article 224 of this Act>,
2-15 and the opposing party's refusal to arbitrate, the court shall
2-16 order the parties to proceed with arbitration; but if the opposing
2-17 party denies the existence of the agreement to arbitrate, the court
2-18 shall proceed summarily to the determination of the issue so raised
2-19 and shall order arbitration if found for the moving party;
2-20 otherwise, the application shall be denied.
2-21 (b) <Sec. B.> On application, the court may stay an
2-22 arbitration proceeding commenced or threatened on a showing that
2-23 there is no agreement to arbitrate. Such an issue, when in
2-24 substantial and bona fide dispute, shall be forthwith and summarily
2-25 tried and the stay ordered if found for the moving party. If found
2-26 for the opposing party, the court shall order the parties to
2-27 proceed to arbitration.
3-1 (c) <Sec. C.> If an issue referable to arbitration under the
3-2 alleged agreement is involved in an action or proceeding pending in
3-3 a court having jurisdiction to hear applications under Section
3-4 171.011(a) <A of Article 234 of this Act>, the application shall be
3-5 made therein. Otherwise and subject to Section 171.012 <Article
3-6 235 of this Act>, the application may be made in any court of
3-7 competent jurisdiction.
3-8 (d) <Sec. D.> Any action or proceeding involving an issue
3-9 subject to arbitration shall be stayed if an order for arbitration
3-10 or an application therefor has been made under the provisions of
3-11 this section <Article 225>, or, if the issue is severable, the stay
3-12 may be with respect thereto only. When the application is made in
3-13 such action or proceeding, the order for arbitration shall include
3-14 such stay.
3-15 (e) <Sec. E.> An order for arbitration shall not be refused
3-16 on the ground that the claim in issue lacks merit or bona fides or
3-17 because any fault or grounds for the claim sought to be arbitrated
3-18 have not been shown.
3-19 Sec. 171.003 <Art. 226>. Appointment of arbitrators by
3-20 court. If the arbitration agreement provides a method of
3-21 appointment of arbitrators, this method shall be followed. In the
3-22 absence thereof, or if the agreed method fails or for any reason
3-23 cannot be followed, or when an arbitrator appointed fails or is
3-24 unable to act and his successor has not been duly appointed, the
3-25 court on application of a party setting forth the nature of the
3-26 issues to be arbitrated and the qualifications of the proposed
3-27 arbitrators shall appoint one or more qualified arbitrators. An
4-1 arbitrator so appointed has all the powers of one specifically
4-2 named in the agreement.
4-3 Sec. 171.004 <Art. 227>. Majority action by arbitrators.
4-4 The powers of the arbitrators may be exercised by a majority unless
4-5 otherwise provided by the agreement or by this chapter <Act>.
4-6 Sec. 171.005 <Art. 228>. Hearings before arbitrators and
4-7 notices thereof. (a) Unless otherwise provided by the agreement,
4-8 the<:>
4-9 <Sec. A. The> arbitrators shall appoint a time and place for
4-10 the hearing and cause notification to the parties to be served
4-11 personally or by registered or certified mail with return receipt
4-12 requested not less than five days before the hearing. Appearance
4-13 at the hearing waives such notice. The arbitrators may adjourn the
4-14 hearing from time to time as necessary and, on request of a party
4-15 and for good cause, or upon their own motion, may postpone the
4-16 hearing to a time not later than the date fixed by the agreement
4-17 for making the award unless the parties consent to a later date.
4-18 The arbitrators may hear and determine the controversy upon the
4-19 evidence produced notwithstanding the failure of a party duly
4-20 notified to appear. The court on application may direct the
4-21 arbitrators to proceed promptly with the hearing and determination
4-22 of the controversy.
4-23 (b) Unless otherwise provided by the agreement, the
4-24 <Sec. B. The> parties are entitled to be heard, to present
4-25 evidence material to the controversy and to cross-examine witnesses
4-26 appearing at the hearing.
4-27 (c) Unless otherwise provided by the agreement, the
5-1 <Sec. C. The> hearing shall be conducted by all the arbitrators
5-2 but a majority may determine any question and render a final award.
5-3 If, during the course of the hearing, an arbitrator for any reason
5-4 ceases to act, the remaining arbitrator or arbitrators appointed to
5-5 act as neutrals may continue with the hearing and determination of
5-6 the controversy.
5-7 Sec. 171.006 <Art. 229>. Representation by attorneys. A
5-8 party has the right to be represented by an attorney at any
5-9 proceeding or hearing under this chapter <Act>. A waiver thereof
5-10 prior to the proceeding or hearing is ineffective.
5-11 Sec. 171.007 <Art. 230>. Testimony at hearings before
5-12 arbitrators by witnesses; subpoenas and dispositions therefor. (a)
5-13 <Sec. A.> The arbitrators shall have the power to administer oaths
5-14 required of witnesses in a civil action pending in a district court
5-15 and may cause same to be administered by any one of them, to each
5-16 witness testifying before them.
5-17 (b) <Sec. B.> The arbitrators may authorize a deposition to
5-18 be taken of a witness who cannot be required by subpoena to appear
5-19 before them or who is unable to attend the hearing, for use as
5-20 evidence, or may authorize a deposition of an adverse witness for
5-21 discovery or evidentiary purposes, such depositions to be taken in
5-22 the manner provided by law for depositions in a civil action
5-23 pending in a district court.
5-24 (c) <Sec. C.> The arbitrators may issue or cause to be
5-25 issued by any one of them, subpoenas for the attendance of
5-26 witnesses and for the production of books, records, documents, and
5-27 other evidence; the appearance of the witness required by such a
6-1 subpoena may be either at the hearing before the arbitrators or at
6-2 the deposition of the witness. Subpoenas so issued shall be served
6-3 in the manner provided by law for the service of subpoenas issued
6-4 in a civil action pending in a district court. All provisions of
6-5 law requiring a witness under subpoena to appear, to produce and to
6-6 testify, pursuant to a subpoena issued in such a civil action,
6-7 shall apply to subpoenas issued under this section <Article>.
6-8 (d) <Sec. D.> Fees for witnesses attending any hearing
6-9 before arbitrators or any deposition pursuant to the provisions of
6-10 this section <Article,> shall be the same as for a witness in a
6-11 civil action in a district court.
6-12 Sec. 171.008 <Art. 231>. Awards by arbitrators. (a)
6-13 <Sec. A.> The award shall be in writing and signed by the
6-14 arbitrators joining in the award. The arbitrators shall deliver a
6-15 copy to each party personally or by registered or certified mail,
6-16 or as provided in the agreement.
6-17 (b) <Sec. B.> An award shall be made within the time fixed
6-18 therefor by the agreement or, if not so fixed, within such time as
6-19 the court orders on application of a party. The parties may extend
6-20 the time in writing either before or after the expiration thereof.
6-21 A party waives the objection that an award was not made within the
6-22 time required unless he notifies the arbitrators of his objection
6-23 prior to the delivery of the award to him.
6-24 Sec. 171.009 <Art. 232>. Changes of awards by arbitrators.
6-25 On application of a party or, if an application to the court is
6-26 pending under Sections 171.013, 171.014, and 171.015 <Articles 236,
6-27 237 and 238>, on submission to the arbitrators by the court under
7-1 such conditions as the court may order, the arbitrators may modify
7-2 or correct the award upon the grounds stated in Section 171.015(a)
7-3 <A of Article 238>, or for the purpose of clarifying the award.
7-4 The application shall be made within twenty days after delivery of
7-5 the award to the applicant. Written notice thereof shall be given
7-6 forthwith to the opposing party, stating that he must serve his
7-7 objections thereto, if any, within ten days from the notice. The
7-8 award so modified or corrected is subject to the provisions of
7-9 Sections 171.013, 171.014, and 171.015 <Articles 236, 237 and 238>.
7-10 Sec. 171.010 <Art. 233>. Fees and expenses of arbitrations
7-11 as awarded by arbitrators. Unless otherwise provided in the
7-12 agreement to arbitrate, the arbitrators' expenses and fees,
7-13 together with other expenses incurred in the conduct of the
7-14 arbitration, shall be paid as provided in the award. Attorneys
7-15 fees shall be awarded by the arbitrators as additional sums
7-16 required to be paid under the award only if provided for in the
7-17 agreement to arbitrate or provided by law as to any recovery in a
7-18 civil action in the district court on such a cause of action on
7-19 which the award in whole or in part is based.
7-20 Sec. 171.011 <Art. 234>. Courts with jurisdiction in
7-21 arbitration proceedings. (a) <Sec. A.> The term "court" as used
7-22 in this chapter <Act> shall mean and include any court of this
7-23 State of competent jurisdiction as to the parties, the subject
7-24 matter, and the amount in controversy. Such a court shall have
7-25 jurisdiction to hear and determine applications as provided in
7-26 Section 171.012 <Article 235>.
7-27 (b) <Sec. B.> The making of an agreement described in
8-1 Section 171.001 <Article 224> and to which that section <Article>
8-2 is applicable (but this expressly shall not be the effect of the
8-3 making of an agreement to which that section <Article> is made
8-4 inapplicable by the last sentence thereof), which provides for or
8-5 authorizes an arbitration in this State, confers jurisdiction on
8-6 the court to enforce the agreement under this chapter <Act> and to
8-7 enter judgment on an award thereunder.
8-8 Sec. 171.012 <Art. 235>. Applications to courts and the
8-9 effect thereof; court proceedings on applications to courts; venue
8-10 thereof; stay of proceedings in another court pursuant to a later
8-11 application; what the court may require that an application
8-12 contain; when applications may be filed in advance of or pending or
8-13 at or after the conclusion of arbitration proceedings; acquisition
8-14 of jurisdiction over adverse parties by service of process or in
8-15 rem by ancillary proceedings; court relief in aid of pending or
8-16 prospective arbitration proceedings or the enforcement of court
8-17 orders or decrees or satisfaction of court judgments; court
8-18 hearings on applications. (a) <Sec. A.> The jurisdiction of a
8-19 court may be invoked by the filing with the clerk of that court of
8-20 an application for the entry by the court of a judgment or decree
8-21 or order provided for by the terms of this chapter <Act>. Upon the
8-22 filing of the initial application and the payment to the clerk of
8-23 the fees of court required to be paid on the filing of a civil
8-24 action in the court, the clerk shall docket the proceedings as a
8-25 civil action pending in that court.
8-26 (b) <Sec. B.> The filing of the initial application shall be
8-27 with the clerk of the court of that county in Texas in which (if it
9-1 does so provide) the arbitration agreement shall provide that the
9-2 hearing before the arbitrators shall be held; or if the hearing has
9-3 been held, in the county in which it was held. Otherwise, the
9-4 initial application shall be filed in the county in which the
9-5 adverse party resides (or one of them if there are two or more
9-6 adverse parties) or has a place of business; or if no adverse party
9-7 has a residence or place of business in this State, in any county.
9-8 The initial application filed with the clerk of a court having
9-9 jurisdiction but in a county other than as provided for in this
9-10 subsection <Section>, shall be transferred to a court of the county
9-11 provided for in this subsection <Section> by an order comparable to
9-12 an order sustaining a plea of privilege to be sued in a civil
9-13 action in a district court of a county other than the county in
9-14 which an action is filed; provided that such order of transfer
9-15 shall be entered only if applied for by a party adverse to the
9-16 applicant who files the initial application, within twenty days of
9-17 the service of process on such adverse party and in advance of any
9-18 other appearance in the court of that adverse party other than one
9-19 challenging the jurisdiction of the court.
9-20 (c) <Sec. C.> An initial application having been so filed,
9-21 the court having jurisdiction thus invoked, may by order or orders
9-22 stay proceedings pursuant to any application later filed seeking to
9-23 invoke the jurisdiction of any other court or the entry of a
9-24 judgment or decree or order provided for by the terms of this
9-25 chapter <Act>; or may stay any civil action or other proceeding
9-26 later instituted; provided, however, that any such stay of
9-27 proceedings in any civil action or other proceeding or pursuant to
10-1 an application later filed in any other court shall be limited to
10-2 and affect only an issue subject to arbitration under the
10-3 arbitration agreement pursuant to the terms of which the initial
10-4 application was so filed.
10-5 (d) <Sec. D.> As provided in Section 171.002(c) <C of
10-6 Article 225>, the initial application and all subsequent
10-7 applications to the court relating to arbitration of an issue
10-8 subject to arbitration under an arbitration agreement shall be
10-9 filed in a civil action or proceeding pending in a court having
10-10 jurisdiction to hear applications under the provisions of Section
10-11 171.011(a) <A of Article 234> if the civil action or proceeding is
10-12 pending before the filing of the initial application as otherwise
10-13 provided by Section 171.012(a) <A of Article 235>.
10-14 (e) <Sec. E.> The court may require that an application
10-15 filed under this chapter <Act> for entry by it of any judgment or
10-16 decree or order shall show the jurisdiction of the court, shall
10-17 have attached to it a copy of the arbitration agreement, shall
10-18 define the issue or issues subject to arbitration between the
10-19 parties under the arbitration agreement, shall specify the status
10-20 of the proceedings before arbitrators and show the need for the
10-21 entry of the judgment, decree or order by the court sought by the
10-22 applicant. No application shall be deemed inadequate because of
10-23 the absence of any of these requirements unless the court shall, in
10-24 its discretion, first require that the application as filed be
10-25 amended to meet the requirements of the court and a period of ten
10-26 days is granted to the applicant to permit him to comply.
10-27 (f) <Sec. F.> An application for entry by the court of a
11-1 judgment or decree or order provided for by the terms of this
11-2 chapter <Act> may be filed in advance of the institution of any
11-3 arbitration proceedings but in aid thereof, or during the pendency
11-4 of any arbitration proceeding before the arbitrators or, subject to
11-5 the provisions of subsequent sections <Articles> of this chapter
11-6 <Act>, at or after the conclusion thereof.
11-7 (g) <Sec. G.> In advance of the institution of any
11-8 arbitration proceedings, but in aid thereof, an application may be
11-9 filed for order or orders to be entered by the court, including but
11-10 not limited to applications:
11-11 (1) <(i)> invoking the jurisdiction of the court over
11-12 the adverse party and for effecting same by service of process on
11-13 him in advance of the institution of arbitration proceedings (it
11-14 not being required to be shown in this connection that the adverse
11-15 party is about to, or may, absent himself from the state if
11-16 jurisdiction over him is not effected by service of process on him
11-17 before the institution of arbitration proceedings);
11-18 (2) <or (ii)> invoking the jurisdiction of the court
11-19 over the controversy in rem, by attachment, garnishment,
11-20 sequestration, or any other ancillary proceeding in the manner by
11-21 which, and on complying with the conditions under which, such
11-22 proceedings may be instituted and conducted ancillary to a civil
11-23 action in a district court;
11-24 (3) <or (iii)> seeking to restrain or enjoin the
11-25 destruction of the subject matter of the controversy or any
11-26 essential part thereof, or the destruction or alteration of books,
11-27 records, documents, or evidence needed for the arbitration
12-1 proceeding, or seeking from the court in its discretion, order for
12-2 deposition or depositions needed in advance of the commencement of
12-3 the arbitration proceedings for discovery, for perpetuation of
12-4 testimony or for evidence;
12-5 (4) <or (iv)> seeking the appointment of arbitrator or
12-6 arbitrators so that proceedings before them under the arbitration
12-7 agreement may proceed; or
12-8 (5) <(v)> seeking any other relief, which the court
12-9 can grant in its discretion, needed to permit the orderly
12-10 arbitration proceedings to be instituted and conducted and to
12-11 prevent any improper interference or delay thereof.
12-12 (h) <Sec. H.> During the pendency of any arbitration
12-13 proceedings before the arbitrators, an application may be filed for
12-14 order or orders to be entered by the court, including but not
12-15 limited to applications:
12-16 (1) <(i)> referred to or to serve any purpose referred
12-17 to in Subsection (g) <Section G of this Article>;
12-18 (2) <or (ii)> to require compliance by any adverse
12-19 party or any witness with order or orders made by arbitrators
12-20 during the arbitration proceedings, pursuant to provisions of this
12-21 chapter <Act>;
12-22 (3) <or (iii)> to require the issuance and service
12-23 under orders of the court rather than orders made by the
12-24 arbitrators, of subpoenas, notices or other court processes in aid
12-25 of the arbitration proceedings before the arbitrators; or in any
12-26 ancillary proceedings in rem by attachment, garnishment,
12-27 sequestration or otherwise, in the manner of and on complying with
13-1 the conditions under which such ancillary proceedings may be
13-2 instituted and conducted ancillary to a civil action in a district
13-3 court; or
13-4 (4) <(iv)> to seek to effect or maintain security for
13-5 the satisfaction of any court judgment that may be later entered
13-6 pursuant to the provisions of an award. During the pendency of the
13-7 arbitration proceedings or at or after their conclusion, an
13-8 application may be filed to seek any of the above mentioned relief
13-9 or otherwise aid in the enforcement of any court judgment or decree
13-10 or order entered pursuant to the provisions of this chapter <Act>;
13-11 or for relief as provided in Sections 171.013, 171.014, and 171.015
13-12 <Articles 236, 237 and 238>.
13-13 (i) <Sec. I.> On filing of any initial application herein
13-14 authorized, the clerk of the court shall issue process for service
13-15 upon each adverse party named therein, attaching a copy of the
13-16 application to each, and appropriate officials authorized so to do
13-17 may proceed to effect service of such process on each adverse
13-18 party, the form and substance of the process and service and the
13-19 return of service, insofar as applicable, being the form provided
13-20 for as to process and service on a defendant in a civil action in a
13-21 district court.
13-22 (j) <Sec. J.> Upon the filing of any application other than
13-23 the initial application, if the jurisdiction over the adverse party
13-24 has been established by service of process on him or in rem upon
13-25 the initial application (though, if not, then on such subsequent
13-26 application there shall be a service of process as provided for in
13-27 Subsection (i) <Section I of this Article>), each subsequent
14-1 application with reference to the same arbitration proceedings or
14-2 prospective proceedings under the same arbitration agreement and
14-3 relating to the same controversy or controversies, shall be treated
14-4 for the purposes of notice to each adverse party, as if a motion
14-5 filed in a pending civil action in a district court. Every such
14-6 subsequent application to the court for any relief and every
14-7 initial application shall be heard by the court in the manner and
14-8 pursuant to the notice provided by law or rule of court as to the
14-9 making and hearing of such a motion.
14-10 Sec. 171.013 <Art. 236>. Confirmation of an award. Upon
14-11 application of a party, the court shall confirm an award, unless
14-12 within the time limits hereinafter imposed grounds are urged for
14-13 vacating or modifying or correcting the award, in which case the
14-14 court shall proceed as provided in Sections 171.014 and 171.015
14-15 <Articles 237 and 238 of this Act>.
14-16 Sec. 171.014 <Art. 237>. Vacating an award. (a)
14-17 <Sec. A.> Upon application of a party, the court shall vacate an
14-18 award where:
14-19 (1) the <The> award was procured by corruption, fraud
14-20 or other undue means;
14-21 (2) there <There> was evident partiality by an
14-22 arbitrator appointed as a neutral or corruption in any of the
14-23 arbitrators or misconduct or wilful misbehavior of any of the
14-24 arbitrators prejudicing the rights of any party;
14-25 (3) the <The> arbitrators exceeded their powers;
14-26 (4) the <The> arbitrators refused to postpone the
14-27 hearing upon sufficient cause being shown therefor or refused to
15-1 hear evidence material to the controversy or otherwise so conducted
15-2 the hearing, contrary to the provisions of Section 171.005 <Article
15-3 228>, as to prejudice substantially the rights of a party; or
15-4 (5) there <There> was no arbitration agreement and the
15-5 issue was not adversely determined in proceedings under Section
15-6 171.002 <Article 225> and the party did not participate in the
15-7 arbitration hearing without raising the objection; but the fact
15-8 that the relief was such that it could not or would not be granted
15-9 by a court of law or equity is not ground for vacating or refusing
15-10 to confirm the award.
15-11 (b) <Sec. B.> An application under this section <Article>
15-12 shall be made within ninety days after delivery of a copy of the
15-13 award to the applicant, except that, if predicated upon corruption,
15-14 fraud or other undue means, it shall be made within ninety days
15-15 after such grounds are known or should have been known.
15-16 (c) <Sec. C.> In vacating the award on grounds other than
15-17 stated in Subsection (a)(5) <paragraph 5 of Section A of this
15-18 Article>, the court may order a rehearing before new arbitrators
15-19 chosen as provided in the agreement, or in the absence thereof, by
15-20 the court in accordance with the provisions of Section 171.003
15-21 <Article 226>; or, if the award is vacated on grounds set forth in
15-22 Subsections (a)(3) and (4) <paragraphs 3 and 4 of Section A of this
15-23 Article>, the court may order a rehearing before the arbitrators
15-24 who made the award or their successors appointed in accordance with
15-25 the provisions of Section 171.003 <Article 226>. The time within
15-26 which the agreement requires the award to be made is applicable to
15-27 the rehearing and commences from the date of the order.
16-1 (d) <Sec. D.> If the application to vacate is denied and no
16-2 motion to modify or correct the award is pending, the court shall
16-3 confirm the award.
16-4 Sec. 171.015 <Art. 238>. Modification or correction of
16-5 award. (a) <Sec. A.> Upon application made within ninety days
16-6 after delivery of a copy of the award to the applicant, the court
16-7 shall modify or correct the award where:
16-8 (1) there <There> was an evident miscalculation of
16-9 figures or an evident mistake in the description of any person,
16-10 thing, or property referred to in the award;
16-11 (2) the <The> arbitrators have awarded upon a matter
16-12 not submitted to them and the award may be corrected without
16-13 affecting the merits of the decision upon the issues submitted; or
16-14 (3) the <The> award is imperfect in a matter of form,
16-15 not affecting the merits of the controversy.
16-16 (b) <Sec. B.> If the application is granted, the court shall
16-17 modify and correct the award so as to effect its intent and shall
16-18 confirm the award as so modified and corrected. Otherwise, the
16-19 court shall confirm the award as made.
16-20 (c) <Sec. C.> An application to modify or correct an award
16-21 may be joined in the alternative with an application to vacate the
16-22 award.
16-23 Sec. 171.016 <Art. 238-1>. Judgment or decree upon an award;
16-24 the enforcement thereof. Upon the granting of an order confirming,
16-25 modifying or correcting an award, judgment or decree shall be
16-26 entered in conformity therewith and be enforced as any other
16-27 judgment or decree. Costs of the application and of the
17-1 proceedings subsequent thereto, and disbursements may be awarded by
17-2 the court.
17-3 Sec. 171.017 <Art. 238-2>. Appeals. (a) <Sec. A.> An
17-4 appeal may be taken from:
17-5 (1) an <An> order denying an application to compel
17-6 arbitration made under Section 171.002(a) <A of Article 225>;
17-7 (2) an <An> order granting an application to stay
17-8 arbitration made under Section 171.002(b) <B of Article 225>;
17-9 (3) an <An> order confirming or denying confirmation
17-10 of an award;
17-11 (4) an <An> order modifying or correcting an award;
17-12 (5) an <An> order vacating an award without directing
17-13 a rehearing; or
17-14 (6) a <A> judgment or decree entered pursuant to the
17-15 provisions of this chapter <Act>.
17-16 (b) <Sec. B.> The appeal shall be taken in the manner and to
17-17 the same extent as from orders or judgments in a civil action.
17-18 Sec. 171.018. EFFECTIVE DATE OF CHAPTER. This chapter
17-19 <Art. 238-3. ACT NOT RETROACTIVE. The Act> applies only to
17-20 agreements made on or after January 1, 1966 <subsequent to the
17-21 taking effect of this Act>.
17-22 Sec. 171.019 <Art. 238-4>. Uniformity of interpretation.
17-23 This chapter <Act> shall be so construed as to effectuate its
17-24 general purpose and make uniform the construction of those
17-25 <articles and> sections that are enacted into the law of
17-26 arbitration proceedings of other states.
17-27 Sec. 171.020 <Art. 238-5>. Severability. If any provision
18-1 of this chapter <Act> or the application thereof to any person or
18-2 circumstance is held invalid, the invalidity shall not affect other
18-3 provisions or applications of the chapter <Act> which can be given
18-4 effect without the invalid provision or application, and to this
18-5 end the provisions of this chapter <Act> are severable.
18-6 <Art. 238-6. NAME OF THIS ACT; DEFINITION OF TERM "THIS
18-7 ACT"; EFFECT OF DIVISION INTO ARTICLES, SECTIONS, AND PARAGRAPHS
18-8 AND OF CAPTIONS OF ARTICLES. The name of this Act is "Texas
18-9 General Arbitration Act." The term "this act" as used therein
18-10 shall mean and refer to Article 224 through this Article 238-6,
18-11 inclusive. This Act is divided into articles with a caption for
18-12 each, with a number assigned to each article, certain of the
18-13 articles are divided into sections with a capital letter assigned
18-14 to each section and certain of the sections are subdivided into
18-15 paragraphs with a parenthetical number assigned to each such
18-16 paragraph. These subdivisions of this Act however are for purposes
18-17 of convenience only and in order that there may be references in
18-18 one provision of the Act to other provision or provisions of the
18-19 Act more readily; neither any such subdivision of the Act nor any
18-20 caption for any article however shall be any aid to or given any
18-21 effect in connection with any construction of the Act or any part
18-22 thereof.>
18-23 <1A. MISCELLANEOUS PROVISIONS>
18-24 Sec. 171.021 <Art. 238-20>. Specific Enforcement of
18-25 Agreements to Arbitrate Future Disputes. (a) <Sec. 1. PURPOSE.>
18-26 The purpose of this chapter <Act> is to abrogate the common law
18-27 arbitration rule prohibiting specific enforcement of executory
19-1 arbitration agreements.
19-2 (b) <Sec. 2. VALIDITY OF ARBITRATION AGREEMENTS.> A written
19-3 agreement or a provision in a written contract to submit to
19-4 arbitration at common law any controversy thereafter arising
19-5 between the parties is valid, enforceable, and irrevocable, except
19-6 upon those grounds that exist at law or in equity for the
19-7 revocation of any contract.
19-8 (c) <Sec. 2A. NONPROFIT CORPORATIONS; AGREEMENT TO ARBITRATE
19-9 IN BYLAWS.> A provision in the bylaws of a nonprofit corporation
19-10 incorporated pursuant to the Texas Non-Profit Corporation Act
19-11 (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) which
19-12 requires the members of the corporation to arbitrate at common law
19-13 any controversy thereafter arising between two or more members
19-14 constitutes an irrevocable agreement by the members of the
19-15 corporation to arbitrate such disputes and said agreement is valid
19-16 and enforceable.
19-17 Sec. 171.022 <3>. Applicability. The provisions of this
19-18 chapter <Act> apply only to the arbitration of controversies
19-19 between members of associations or corporations which are exempt
19-20 from the payment of federal income taxes pursuant to Section 501(c)
19-21 of the U.S. Internal Revenue Code or which are incorporated
19-22 pursuant to the Texas Non-Profit Corporation Act (Article 1396-1.01
19-23 et seq., Vernon's Texas Civil Statutes).
19-24 Sec. 171.023 <4>. Saving Clause. (a) This chapter <Act> is
19-25 cumulative of and supplemental to any other laws and parts of law
19-26 relating to common law arbitration and, except as specifically
19-27 provided, does not abrogate or repeal those other laws or parts of
20-1 law.
20-2 (b) This chapter <Act> does not alter or affect any other
20-3 provision of this title <Title 10, Revised Statutes (Article 224 et
20-4 seq.),> or any other statutory arbitration rules.
20-5 CHAPTER 172 <3>. ARBITRATION AND CONCILIATION
20-6 OF INTERNATIONAL COMMERCIAL DISPUTES
20-7 SUBCHAPTER <SUBDIVISION> A. APPLICATION
20-8 AND INTERPRETATION
20-9 Sec. 172.001 <Art. 249-1>. Scope of application. (a)
20-10 <Sec. 1.> This chapter <part> applies to international commercial
20-11 arbitration and conciliation, subject to any agreement that is in
20-12 force between the United States and another state or states.
20-13 (b) <Sec. 2.> This chapter <part>, except Sections 172.052
20-14 and 172.053 <Articles 249-8 and 249-9, Revised Statutes>, applies
20-15 only to arbitration or conciliation in this state.
20-16 (c) <Sec. 3.> An arbitration or conciliation agreement is
20-17 international if:
20-18 (1) the parties to the agreement have their places of
20-19 business in different states when the agreement is concluded;
20-20 (2) one or more of the following places is situated
20-21 outside the states in which the parties have their places of
20-22 business:
20-23 (A) the place of arbitration or conciliation
20-24 determined pursuant to the arbitration or conciliation agreement;
20-25 (B) any place where a substantial part of the
20-26 obligations of the commercial relationship is to be performed; or
20-27 (C) the place with which the subject matter of
21-1 the dispute is most closely connected;
21-2 (3) the parties have expressly agreed that the subject
21-3 matter of the arbitration or conciliation agreement relates to
21-4 commercial interests in more than one state; or
21-5 (4) the arbitration or conciliation agreement arises
21-6 out of a legal relationship, whether or not contractual, that has
21-7 another reasonable relation with more than one state.
21-8 (d) <Sec. 4.> For the purposes of Subsection (c) <Section 3
21-9 of this article>, if a party has more than one place of business,
21-10 the party's place of business is considered to be the place that
21-11 has the closest relationship to the arbitration or conciliation
21-12 agreement, and if a party does not have a place of business, the
21-13 party's place of business is considered to be the party's habitual
21-14 residence.
21-15 (e) <Sec. 5.> For the purposes of Subsection (c) <Section 3
21-16 of this article>, the states of the United States and the District
21-17 of Columbia are considered one state.
21-18 (f) <Sec. 6.> An arbitration or conciliation agreement is
21-19 commercial if it arises out of a relationship of a commercial
21-20 nature, including but not limited to:
21-21 (1) a transaction for the supply or exchange of goods
21-22 or services;
21-23 (2) a distribution agreement;
21-24 (3) a commercial representation or agency;
21-25 (4) an exploitation agreement or concession;
21-26 (5) a joint venture or other related form of
21-27 industrial or business cooperation;
22-1 (6) the carriage of goods or passengers by air, sea,
22-2 rail, or road;
22-3 (7) a relationship involving construction, insurance,
22-4 licensing, factoring, leasing, consulting, engineering, financing,
22-5 banking, professional services, or intellectual or industrial
22-6 property, including trademarks, patents, copyrights, and software
22-7 programs; or
22-8 (8) the transfer of data or technology.
22-9 (g) <Sec. 7.> If a written agreement to submit an existing
22-10 controversy to arbitration or a provision in a written contract to
22-11 submit to arbitration a controversy thereafter arising between the
22-12 parties qualifies for arbitration pursuant to this section
22-13 <article>, that written agreement or provision shall be valid,
22-14 enforceable and irrevocable, save on such grounds as exist at law
22-15 or in equity for the revocation of any contract.
22-16 (h) <Sec. 8.> This chapter <part> does not affect any other
22-17 state law under which certain disputes may not be submitted to
22-18 arbitration or may be submitted to arbitration only in accordance
22-19 with provisions other than this chapter <part>, except that this
22-20 chapter <part> supersedes Sections 171.002 <Articles 225> through
22-21 171.010 <233, Revised Statutes,> with respect to international
22-22 commercial arbitration and conciliation. However, this chapter
22-23 <part> does not supersede Section 171.001 or Sections 171.011
22-24 through 171.020 <Article 224 or Articles 234 through 238-6, Revised
22-25 Statutes>.
22-26 Sec. 172.002 <Art. 249-2>. Interpretation. (a) <Sec. 1.>
22-27 In this chapter <part>:
23-1 (1) "Arbitral award" means any decision of an arbitral
23-2 tribunal on the substance of a dispute submitted to it and includes
23-3 an interim, interlocutory, or partial award.
23-4 (2) "Arbitral tribunal" means a sole arbitrator or a
23-5 panel of arbitrators.
23-6 (3) "Arbitration" includes any arbitration whether or
23-7 not administered by a permanent arbitral institution.
23-8 (4) "Conciliation" includes any conciliation whether
23-9 or not administered by a permanent conciliation institution.
23-10 (5) "District court" means the district court in the
23-11 county in this state selected pursuant to Section 172.006 <Article
23-12 249-6, Revised Statutes>.
23-13 (6) "Party" means a party to an arbitration or
23-14 conciliation agreement.
23-15 (b) <Sec. 2.> If this chapter <part>, other than Section
23-16 172.251 <Article 249-28, Revised Statutes>, allows the parties to
23-17 determine a certain issue, the parties may authorize a third party,
23-18 including an institution, to make that determination.
23-19 (c) <Sec. 3.> An agreement of the parties under this chapter
23-20 <part> includes any arbitration or conciliation rules referred to
23-21 by that agreement.
23-22 (d) <Sec. 4.> In this chapter <part>, other than in Section
23-23 172.208(a) or 172.255(b)(1) <1 of Article 249-25, Revised Statutes,
23-24 or Subdivision (1) of Section 2 of Article 249-32, Revised
23-25 Statutes>, a reference to a claim includes a counterclaim, and a
23-26 reference to a defense includes a defense to a counterclaim.
23-27 Sec. 172.003 <Art. 249-3>. Receipt of written
24-1 communications. (a) <Sec. 1.> Unless otherwise agreed by the
24-2 parties, a written communication is considered received if it is
24-3 delivered to the addressee personally or if it is delivered at the
24-4 addressee's place of business, habitual residence, or mailing
24-5 address, and the communication is considered received on the day it
24-6 is delivered.
24-7 (b) <Sec. 2.> If none of the places referred to in
24-8 Subsection (a) <Section 1> can be found after a reasonable inquiry,
24-9 a written communication is considered received if it is sent to the
24-10 addressee's last known place of business, habitual residence, or
24-11 mailing address by registered mail or by other means that provides
24-12 a record of the attempt to deliver it.
24-13 (c) <Sec. 3.> This section <article> does not apply to a
24-14 written communication relating to a court proceeding.
24-15 Sec. 172.004 <Art. 249-4>. Waiver of right to object. (a)
24-16 <Sec. 1.> A party who knows that a provision of this chapter
24-17 <part> or a requirement under the arbitration agreement has not
24-18 been complied with but proceeds with the arbitration without
24-19 stating an objection to noncompliance without undue delay or, if a
24-20 time limit is provided for stating that objection, within that
24-21 period, is considered to have waived the right to object.
24-22 (b) Subsection (a) <Sec. 2. Section 1 of this article>
24-23 applies only to a provision of this chapter <part> as to which the
24-24 parties may otherwise agree.
24-25 Sec. 172.005 <Art. 249-5>. Extent of judicial intervention.
24-26 A court may not intervene in a matter governed by this chapter
24-27 <part> except as provided by this chapter <part> or applicable
25-1 federal law.
25-2 Sec. 172.006 <Art. 249-6>. Venue and jurisdiction of courts.
25-3 The functions referred to in Sections 172.102(d), (e), and (f),
25-4 172.104(d), 172.105(b), and 172.151(f) <Sections 4, 5, and 6 of
25-5 Article 249-11, Revised Statutes, Section 4 of Article 249-13,
25-6 Revised Statutes, Section 2 of Article 249-14, Revised Statutes,
25-7 and Section 6 of Article 249-16, Revised Statutes,> shall be
25-8 performed by the district court of the county in which the place of
25-9 arbitration is located. The functions referred to in Section
25-10 172.210 <Article 249-27, Revised Statutes,> shall be performed by
25-11 the district court selected as provided by Section 171.012 <Article
25-12 235, Revised Statutes>. The functions referred to in Section
25-13 172.052 <Article 249-8, Revised Statutes,> shall be performed by
25-14 the court in which the judicial proceedings are pending. The
25-15 functions referred to in Section 172.053 <Article 249-9, Revised
25-16 Statutes,> shall be performed by the court having jurisdiction over
25-17 the measures described by that section <article>.
25-18 (Sections 172.007 to 172.050 reserved for expansion
25-19 SUBCHAPTER <SUBDIVISION> B. ARBITRATION
25-20 AGREEMENTS AND JUDICIAL MEASURES
25-21 IN AID OF ARBITRATION
25-22 Sec. 172.051 <Art. 249-7>. Arbitration agreement. (a)
25-23 <Sec. 1.> An arbitration agreement is an agreement to submit to
25-24 arbitration disputes that have arisen or may arise between the
25-25 parties concerning a defined legal relationship, whether or not
25-26 contractual. An arbitration agreement may be an arbitration clause
25-27 in a contract or a separate agreement.
26-1 (b) <Sec. 2.> An arbitration agreement must be in writing.
26-2 An agreement is in writing if it is contained in a document signed
26-3 by the parties or in an exchange of letters, telexes, telegrams, or
26-4 other means of telecommunication that provide a record of the
26-5 agreement or in an exchange of statements of claim and defense in
26-6 which the existence of an agreement is alleged by one party and not
26-7 denied by another. The reference in a contract to a document
26-8 containing an arbitration clause constitutes an arbitration
26-9 agreement if the contract is in writing and the reference is
26-10 sufficient to make that clause part of the contract.
26-11 Sec. 172.052 <Art. 249-8>. Stay of proceedings. (a)
26-12 <Sec. 1.> When a party to an international commercial arbitration
26-13 agreement commences judicial proceedings seeking relief with
26-14 respect to a matter covered by the agreement, the court shall, if a
26-15 party requests not later than the time the party submits the
26-16 party's first statement on the substance of the dispute, stay the
26-17 proceedings and refer the parties to arbitration, unless it finds
26-18 that the agreement is void, inoperable, or incapable of being
26-19 performed.
26-20 (b) <Sec. 2.> Arbitral proceedings may begin or continue,
26-21 and an award may be made, while an action described in Subsection
26-22 (a) <Section 1 of this article> is pending before the court.
26-23 Sec. 172.053 <Art. 249-9>. Interim measures. (a)
26-24 <Sec. 1.> A party to an arbitration agreement may request an
26-25 interim measure of protection from a district court before or
26-26 during arbitral proceedings.
26-27 (b) <Sec. 2.> A party to an arbitration governed by this
27-1 chapter <part> may request from the district court enforcement of
27-2 an order of an arbitral tribunal granting an interim measure of
27-3 protection under Section 172.152 <Article 249-17, Revised
27-4 Statutes>. Enforcement shall be granted as provided by the law
27-5 applicable to the type of interim relief requested.
27-6 (c) <Sec. 3.> In connection with a pending arbitration, the
27-7 court may:
27-8 (1) order an attachment issued to assure that the
27-9 award to which the applicant may be entitled is not rendered
27-10 ineffectual by the dissipation of party assets;
27-11 (2) grant a preliminary injunction to protect trade
27-12 secrets or to conserve goods that are the subject matter of the
27-13 arbitral dispute; or
27-14 (3) take other appropriate action.
27-15 (d) <Sec. 4.> In considering a request for interim relief,
27-16 the court shall give preclusive effect to all findings of fact of
27-17 the arbitral tribunal in the proceeding, including the probable
27-18 validity of the claim that is the subject of the order for interim
27-19 relief that the arbitral tribunal has granted, if the interim order
27-20 is consistent with public policy.
27-21 (e) <Sec. 5.> If the arbitral tribunal has not ruled on an
27-22 objection to its jurisdiction, the court shall not grant preclusive
27-23 effect to the arbitral tribunal's findings until the court has made
27-24 an independent finding as to the jurisdiction of the arbitral
27-25 tribunal. If the court rules that the arbitral tribunal did not
27-26 have jurisdiction under applicable law, the application for interim
27-27 measures of relief shall be denied.
28-1 (Sections 172.054 to 172.100 reserved for expansion
28-2 SUBCHAPTER <SUBDIVISION> C. COMPOSITION
28-3 OF ARBITRAL TRIBUNALS
28-4 Sec. 172.101 <Art. 249-10>. Number of arbitrators. There
28-5 shall be one arbitrator unless the parties agree on a greater
28-6 number of arbitrators.
28-7 Sec. 172.102 <Art. 249-11>. Appointment of arbitrators. (a)
28-8 <Sec. 1.> A person of any nationality may be an arbitrator.
28-9 (b) <Sec. 2.> Subject to Subsections (f), (g), and (h)
28-10 <Sections 6, 7, and 8 of this article>, the parties may agree on a
28-11 procedure for appointing the arbitral tribunal.
28-12 (c) <Sec. 3.> If an agreement is not made under Subsection
28-13 (b) <Section 2 of this article>, in an arbitration with three
28-14 arbitrators and two parties, each party shall appoint one
28-15 arbitrator, and the two appointed arbitrators shall appoint the
28-16 third arbitrator.
28-17 (d) <Sec. 4.> If the appointment procedure in Subsection (c)
28-18 <Section 3 of this article> applies and a party fails to appoint an
28-19 arbitrator within 30 days after the date of receipt of a request to
28-20 do so from the other party or the two appointed arbitrators fail to
28-21 agree on the third arbitrator within 30 days after the date of
28-22 their appointment, the appointment shall be made, on request of a
28-23 party, by the district court.
28-24 (e) <Sec. 5.> If an agreement is not made under Subsection
28-25 (b) <Section 2 of this article> in an arbitration with a sole
28-26 arbitrator and the parties fail to agree on the arbitrator, the
28-27 appointment shall be made, on request of a party, by the district
29-1 court.
29-2 (f) <Sec. 6.> The district court, on request of a party, may
29-3 take the necessary measures unless the agreement on the appointment
29-4 procedure provides other means for securing the appointment, if
29-5 under an appointment procedure agreed to by the parties:
29-6 (1) a party fails to act as required under that
29-7 procedure;
29-8 (2) the parties or two appointed arbitrators fail to
29-9 reach an agreement expected of them under that procedure; or
29-10 (3) a third party, including an institution, fails to
29-11 perform a function assigned to it under that procedure.
29-12 (g) <Sec. 7.> A decision of the district court under
29-13 Subsection (d), (e), or (f) <Section 4, 5, or 6 of this article> is
29-14 final and not subject to appeal.
29-15 (h) <Sec. 8.> The district court, in appointing an
29-16 arbitrator, shall consider:
29-17 (1) any qualifications required of the arbitrator by
29-18 the agreement of the parties;
29-19 (2) other considerations making more likely the
29-20 appointment of an independent and impartial arbitrator; and
29-21 (3) in the case of a sole or third arbitrator, the
29-22 advisability of appointing an arbitrator of a nationality other
29-23 than those of the parties.
29-24 Sec. 172.103 <Art. 249-12>. Grounds for challenge. (a)
29-25 <Sec. 1.> Except as otherwise provided by this chapter <part>, a
29-26 person who has been contacted in connection with the person's
29-27 possible appointment or designation as an arbitrator or conciliator
30-1 or who has been appointed or designated shall, within 21 days after
30-2 the date of the contact, appointment, or designation, disclose to
30-3 the parties any information that might cause the person's
30-4 impartiality or independence to be questioned, including but not
30-5 limited to whether:
30-6 (1) the person has a personal bias or prejudice
30-7 concerning a party or personal knowledge of disputed evidentiary
30-8 facts concerning the proceeding;
30-9 (2) the person has served as a lawyer in the matter in
30-10 controversy, is or has been associated with another who has
30-11 participated in the matter during the association, or has been a
30-12 material witness concerning the matter;
30-13 (3) the person has served as an arbitrator or
30-14 conciliator in another proceeding involving one or more of the
30-15 parties to the proceeding;
30-16 (4) the person, individually or as a fiduciary, or the
30-17 person's spouse or minor child residing in the person's household
30-18 has a financial interest in the subject matter in controversy or in
30-19 a party to the proceeding or any other interest that could be
30-20 substantially affected by the outcome of the proceeding;
30-21 (5) the person, the person's spouse, a person within
30-22 the third degree of relationship to either of them, or the spouse
30-23 of such a person:
30-24 (A) is or has been a party to the proceeding or
30-25 an officer, director, or trustee of a party;
30-26 (B) is acting or has acted as a lawyer in the
30-27 proceeding;
31-1 (C) is known to have an interest that could be
31-2 substantially affected by the outcome of the proceeding; or
31-3 (D) is likely to be a material witness in the
31-4 proceeding; or
31-5 (6) the person has a close personal or professional
31-6 relationship with a person who:
31-7 (A) is or has been a party to the proceeding or
31-8 an officer, director, or trustee of a party;
31-9 (B) is acting or has acted as a lawyer or
31-10 representative in the proceeding;
31-11 (C) is or expects to be nominated as an
31-12 arbitrator or conciliator in the proceeding;
31-13 (D) is known to have an interest that could be
31-14 substantially affected by the outcome of the proceeding; or
31-15 (E) is likely to be a material witness in the
31-16 proceeding.
31-17 (b) <Sec. 2.> The disclosure under Subsection (a) <Section 1
31-18 of this article> may not be waived by the parties with respect to
31-19 persons serving as the sole arbitrator or sole conciliator or as
31-20 the chief or prevailing arbitrator or conciliator. The parties may
31-21 otherwise agree to waive the disclosure.
31-22 (c) <Sec. 3.> After appointment and throughout the
31-23 arbitration or conciliation proceedings, an arbitrator or
31-24 conciliator without delay shall disclose to the parties any
31-25 circumstance described by Subsection (a) <Section 1> that was not
31-26 previously disclosed.
31-27 (d) <Sec. 4.> Unless otherwise agreed by the parties or
32-1 provided by the rules governing the arbitration, an arbitrator may
32-2 be challenged only if circumstances exist that give rise to
32-3 justifiable doubts as to the arbitrator's impartiality,
32-4 independence, or possession of qualifications on which the parties
32-5 have agreed.
32-6 (e) <Sec. 5.> A party may challenge an arbitrator appointed
32-7 by the party or in whose appointment the party has participated
32-8 only for reasons of which the party becomes aware after the
32-9 appointment has been made.
32-10 Sec. 172.104 <Art. 249-13>. Challenge procedure. (a)
32-11 <Sec. 1.> The parties may agree on a procedure for challenging an
32-12 arbitrator, and the decision reached as provided by that procedure
32-13 is final.
32-14 (b) <Sec. 2.> If there is not an agreement under Subsection
32-15 (a) <Section 1 of this article>, a party challenging an arbitrator,
32-16 within 15 days after the date the party becomes aware of the
32-17 constitution of the arbitral tribunal or of any circumstances
32-18 referred to in Sections 172.103(d) and (e) <Sections 4 and 5 of
32-19 Article 249-12, Revised Statutes>, whichever is later, shall send a
32-20 written statement of the reasons for the challenge to the arbitral
32-21 tribunal.
32-22 (c) <Sec. 3.> Unless the arbitrator challenged under
32-23 Subsection (b) <Section 2 of this article> withdraws from office or
32-24 the other party agrees to the challenge, the arbitral tribunal
32-25 shall decide on the challenge.
32-26 (d) <Sec. 4.> If a challenge following the procedure under
32-27 Subsections (b) and (c) <Sections 2 and 3 of this article> is
33-1 unsuccessful, the challenging party, within 30 days after the date
33-2 the party receives notice of the decision rejecting the challenge,
33-3 may request the district court to decide on the challenge. If a
33-4 challenge is based on grounds set forth in Section 172.103(d)
33-5 <Section 4 of Article 249-12, Revised Statutes>, and the district
33-6 court determines that the facts support a finding that the grounds
33-7 fairly exist, the challenge shall be sustained.
33-8 (e) <Sec. 5.> The decision of the district court under
33-9 Subsection (d) <Section 4 of this article> is final and not subject
33-10 to appeal.
33-11 (f) <Sec. 6.> While a request under Subsection (d) <Section
33-12 4 of this article> is pending, the arbitral tribunal, including the
33-13 challenged arbitrator, may continue the proceedings and make an
33-14 award.
33-15 Sec. 172.105 <Art. 249-14>. Failure or impossibility to act.
33-16 (a) <Sec. 1.> The mandate of an arbitrator terminates if the
33-17 arbitrator becomes unable to perform the arbitrator's functions or
33-18 for other reasons fails to act without undue delay and the
33-19 arbitrator withdraws from office or the parties agree to the
33-20 termination.
33-21 (b) <Sec. 2.> If a controversy remains concerning a ground
33-22 referred to in Subsection (a) <Section 1 of this article>, a party
33-23 may request the district court to decide on the termination of the
33-24 arbitrator's mandate. The decision of the district court is not
33-25 subject to appeal.
33-26 (c) <Sec. 3.> If, under this section <article> or Section
33-27 172.104(c) <Section 3 of Article 249-13, Revised Statutes>, an
34-1 arbitrator withdraws from office or a party agrees to the
34-2 termination of the mandate of an arbitrator, this does not imply
34-3 acceptance of the validity of any ground referred to in this
34-4 section <article> or Sections 172.103(d) and (e) <Sections 4 and 5
34-5 of Article 249-12, Revised Statutes>.
34-6 Sec. 172.106 <Art. 249-15>. Termination of mandate and
34-7 substitution of arbitrator. (a) <Sec. 1.> In addition to the
34-8 circumstances referred to under Sections 172.104 and 172.105
34-9 <Articles 249-13 and 249-14, Revised Statutes>, the mandate of an
34-10 arbitrator terminates on withdrawal from office for any reason or
34-11 when the parties agree.
34-12 (b) <Sec. 2.> When the mandate of an arbitrator terminates,
34-13 a substitute arbitrator shall be appointed according to the rules
34-14 that were applicable to the appointment of the arbitrator being
34-15 replaced.
34-16 (c) <Sec. 3.> Unless otherwise agreed by the parties:
34-17 (1) if the sole or presiding arbitrator is replaced,
34-18 any hearings previously held shall be repeated; and
34-19 (2) if an arbitrator other than the sole or presiding
34-20 arbitrator is replaced, any hearings previously held may be
34-21 repeated at the discretion of the arbitral tribunal.
34-22 (d) <Sec. 4.> Unless otherwise agreed by the parties, an
34-23 order or ruling of the arbitral tribunal made before the
34-24 replacement of an arbitrator under this section <article> is not
34-25 invalid because there has been a change in the composition of the
34-26 arbitral tribunal.
34-27 (Sections 172.107 to 172.150 reserved for expansion
35-1 SUBCHAPTER <SUBDIVISION> D. JURISDICTION
35-2 OF ARBITRAL TRIBUNALS
35-3 Sec. 172.151 <Art. 249-16>. Competence of arbitral tribunal
35-4 to rule on its jurisdiction. (a) <Sec. 1.> The arbitral tribunal
35-5 may rule on its own jurisdiction, including any objections with
35-6 respect to the existence or validity of the arbitration agreement.
35-7 For that purpose, an arbitration clause that forms part of a
35-8 contract shall be treated as an agreement independent of the other
35-9 terms of the contract. A decision by the arbitral tribunal that
35-10 the contract is void does not make the arbitration clause invalid.
35-11 (b) <Sec. 2.> A plea that the arbitral tribunal does not
35-12 have jurisdiction must be raised not later than the submission of
35-13 the statement of defense. A party is not precluded from raising
35-14 such a plea because the party has appointed or participated in the
35-15 appointment of an arbitrator.
35-16 (c) <Sec. 3.> A plea that the arbitral tribunal is exceeding
35-17 the scope of its authority must be raised when the matter alleged
35-18 to be beyond the scope of its authority is raised during the
35-19 arbitral proceedings.
35-20 (d) <Sec. 4.> The arbitral tribunal, in a situation referred
35-21 to in Subsection (b) or (c) <Section 2 or 3 of this article>, may
35-22 admit a later plea if it considers the delay justified.
35-23 (e) <Sec. 5.> The arbitral tribunal may rule on a plea
35-24 referred to in Subsection (b), (c), or (d) <Section 2, 3, or 4 of
35-25 this article> as a preliminary question or in an award on the
35-26 merits.
35-27 (f) <Sec. 6.> If the arbitral tribunal rules as a
36-1 preliminary question that it has jurisdiction, a party waives
36-2 objection to the ruling unless the party, within 30 days after the
36-3 date the party receives notice of that ruling, requests the
36-4 district court to decide the matter. The decision of the district
36-5 court is not subject to appeal.
36-6 (g) <Sec. 7.> While a request under Subsection (f) <Section
36-7 6 of this article> is pending before the district court, the
36-8 arbitral tribunal may continue the arbitral proceedings and make an
36-9 award.
36-10 Sec. 172.152 <Art. 249-17>. Interim measures ordered by
36-11 arbitral tribunal. (a) <Sec. 1.> Unless otherwise agreed by the
36-12 parties, the arbitral tribunal, at the request of a party, may
36-13 order a party to take an interim measure of protection that the
36-14 arbitral tribunal considers necessary concerning the subject matter
36-15 of the dispute.
36-16 (b) <Sec. 2.> The arbitral tribunal may require a party to
36-17 provide appropriate security in connection with a measure ordered
36-18 under Subsection (a) <Section 1 of this article>.
36-19 (Sections 172.153 to 172.200 reserved for expansion
36-20 SUBCHAPTER <SUBDIVISION> E. MANNER AND CONDUCT
36-21 OF ARBITRATION
36-22 Sec. 172.201 <Art. 249-18>. Equal treatment of parties. The
36-23 parties shall be treated with equality and each party shall be
36-24 given a full opportunity to present the party's case.
36-25 Sec. 172.202 <Art. 249-19>. Determination of rules of
36-26 procedure. (a) <Sec. 1.> Subject to this chapter <part>, the
36-27 parties may agree on the procedure to be followed by the arbitral
37-1 tribunal in conducting the proceedings.
37-2 (b) <Sec. 2.> If an agreement is not made under Subsection
37-3 (a) <Section 1 of this article>, the arbitral tribunal, subject to
37-4 this chapter <part>, may conduct the arbitration in the manner it
37-5 considers appropriate.
37-6 (c) <Sec. 3.> The power of the arbitral tribunal under
37-7 Subsection (b) <Section 2 of this article> includes the power to
37-8 determine the admissibility, relevance, materiality, and weight of
37-9 any evidence.
37-10 Sec. 172.203 <Art. 249-20>. Place of arbitration.
37-11 (a) <Sec. 1.> The parties may agree on the place of arbitration.
37-12 (b) <Sec. 2.> If the parties do not agree under Subsection
37-13 (a) <Section 1 of this article>, the place of arbitration shall be
37-14 determined by the arbitral tribunal having regard for the
37-15 circumstances of the case, including the convenience of the
37-16 parties.
37-17 (c) <Sec. 3.> Notwithstanding Subsections (a) and (b)
37-18 <Sections 1 and 2 of this article>, the arbitral tribunal may,
37-19 unless otherwise agreed by the parties, meet at any place it
37-20 considers appropriate for consultation among its members, for
37-21 hearing witnesses, experts, or the parties, or for inspection of
37-22 documents, goods, or other property.
37-23 Sec. 172.204 <Art. 249-21>. Commencement of arbitral
37-24 proceedings. Unless otherwise agreed by the parties, the arbitral
37-25 proceedings begin on the date on which a request for the dispute to
37-26 be referred to arbitration is received by the respondent.
37-27 Sec. 172.205 <Art. 249-22>. Language. (a) <Sec. 1.> The
38-1 parties may agree on the language or languages to be used in the
38-2 arbitral proceedings.
38-3 (b) <Sec. 2.> If the parties do not agree under Subsection
38-4 (a) <Section 1 of this article>, the arbitral tribunal shall
38-5 determine the language or languages to be used in the proceedings.
38-6 (c) <Sec. 3.> The agreement or determination, unless it
38-7 provides otherwise, applies to written statements by a party,
38-8 hearings, and awards, decisions, or other communications by the
38-9 arbitral tribunal.
38-10 (d) <Sec. 4.> The arbitral tribunal may order that
38-11 documentary evidence be accompanied by a translation into the
38-12 language or languages agreed on by the parties or determined by the
38-13 arbitral tribunal.
38-14 Sec. 172.206 <Art. 249-23>. Statements of claim and defense.
38-15 (a) <Sec. 1.> Within the period agreed on by the parties or
38-16 determined by the arbitral tribunal, the claimant shall state the
38-17 facts supporting the claim, the points at issue, and the relief or
38-18 remedy sought, and the respondent shall state the defense, unless
38-19 the parties have otherwise agreed as to the required elements of
38-20 those statements.
38-21 (b) <Sec. 2.> A party may submit with the party's statement
38-22 documents the party considers relevant or may add a reference to
38-23 the documents or other evidence the party will submit.
38-24 (c) <Sec. 3.> Unless otherwise agreed by the parties, a
38-25 party may amend or supplement a claim or defense during the
38-26 arbitral proceedings, unless the arbitral tribunal considers it
38-27 inappropriate to allow the amendment or supplement having regard to
39-1 the delay in making it.
39-2 Sec. 172.207 <Art. 249-24>. Hearings and written
39-3 proceedings. (a) <Sec. 1.> Unless otherwise agreed by the
39-4 parties, the arbitral tribunal shall decide whether to hold oral
39-5 hearings for the presentation of evidence or for oral argument or
39-6 whether the proceedings are to be conducted on the basis of
39-7 documents and other materials.
39-8 (b) <Sec. 2.> Unless the parties have agreed that oral
39-9 hearings are not to be held, the arbitral tribunal shall hold oral
39-10 hearings at an appropriate stage of the proceedings on request of a
39-11 party.
39-12 (c) <Sec. 3.> The parties shall be given sufficient advance
39-13 notice of any hearing and of any meeting of the arbitral tribunal
39-14 for the purpose of inspection of documents, goods, or other
39-15 property.
39-16 (d) <Sec. 4.> All statements, documents, or other
39-17 information supplied to or applications made to the arbitral
39-18 tribunal by one party shall be communicated to the other party, and
39-19 any expert report or evidentiary document on which the arbitral
39-20 tribunal may rely in making its decision shall be communicated to
39-21 the parties.
39-22 (e) <Sec. 5.> Unless otherwise agreed by the parties, all
39-23 oral hearings and meetings in arbitral proceedings shall be held in
39-24 camera.
39-25 Sec. 172.208 <Art. 249-25>. Default of party. (a)
39-26 <Sec. 1.> Unless otherwise agreed by the parties, if the claimant
39-27 without showing sufficient cause fails to communicate the statement
40-1 of claim as provided by Sections 172.206(a) and (b) <1 and 2 of
40-2 Article 249-23, Revised Statutes>, the arbitral tribunal shall
40-3 terminate the proceedings.
40-4 (b) <Sec. 2.> Unless otherwise agreed by the parties, if the
40-5 respondent without showing sufficient cause fails to communicate
40-6 the statement of defense as provided by Sections 172.206(a) and (b)
40-7 <1 and 2 of Article 249-23, Revised Statutes>, the arbitral
40-8 tribunal shall continue the proceedings without treating that
40-9 failure as an admission of the claimant's allegations.
40-10 (c) <Sec. 3.> Unless otherwise agreed by the parties, if a
40-11 party without showing sufficient cause fails to appear at an oral
40-12 hearing or to produce documentary evidence, the arbitral tribunal
40-13 may continue the proceedings and make the award based on the
40-14 evidence before it.
40-15 Sec. 172.209 <Art. 249-26>. Expert appointed by arbitral
40-16 tribunal. (a) <Sec. 1.> Unless otherwise agreed by the parties,
40-17 the arbitral tribunal may appoint one or more experts to report to
40-18 it on specific issues to be determined by the arbitral tribunal and
40-19 require a party to give the expert relevant information or to
40-20 produce or provide access to relevant documents, goods, or other
40-21 property.
40-22 (b) <Sec. 2.> Unless otherwise agreed by the parties, if a
40-23 party requests or if the arbitral tribunal considers it necessary,
40-24 the expert shall, after delivery of a written or oral report,
40-25 participate in an oral hearing at which the parties have the
40-26 opportunity to question the expert and present expert witnesses on
40-27 the points at issue.
41-1 Sec. 172.210 <Art. 249-27>. Court assistance in taking
41-2 evidence and consolidating arbitrations. (a) <Sec. 1.> The
41-3 arbitral tribunal or a party with the approval of the tribunal may
41-4 request assistance from the district court in taking evidence, and
41-5 the court may provide the assistance according to its rules on
41-6 taking evidence. A subpoena may be issued as provided by Section
41-7 171.007(c) <C of Article 230, Revised Statutes>, in which case the
41-8 witness compensation provisions of Section 171.007(d) <D of that
41-9 article> apply.
41-10 (b) <Sec. 2.> If the parties to two or more arbitration
41-11 agreements agree, in their respective arbitration agreements or
41-12 otherwise, to consolidate the arbitrations arising out of those
41-13 agreements, the district court, on application by one party with
41-14 the consent of all the other parties to those arbitration
41-15 agreements, may:
41-16 (1) order the arbitrations to be consolidated on terms
41-17 the court considers just and necessary;
41-18 (2) if all the parties cannot agree on an arbitral
41-19 tribunal for the consolidated arbitration, appoint an arbitral
41-20 tribunal as provided by Section 172.102(h) <8 of Article 249-11,
41-21 Revised Statutes>; and
41-22 (3) if all the parties cannot agree on any other
41-23 matter necessary to conduct the consolidated arbitration, make any
41-24 other order it considers necessary.
41-25 (c) <Sec. 3.> This section <article> may not be construed to
41-26 prevent the parties to two or more arbitrations from agreeing to
41-27 consolidate those arbitrations and taking any steps that are
42-1 necessary to effect that consolidation.
42-2 (Sections 172.211 to 172.250 reserved for expansion
42-3 SUBCHAPTER <SUBDIVISION> F. MAKING OF ARBITRAL AWARD
42-4 AND TERMINATION OF PROCEEDINGS
42-5 Sec. 172.251 <Art. 249-28>. Rules applicable to substance of
42-6 dispute. (a) <Sec. 1.> The arbitral tribunal shall decide the
42-7 dispute according to the rules of law designated by the parties as
42-8 applicable to the substance of the dispute.
42-9 (b) <Sec. 2.> Any designation by the parties of the law or
42-10 legal system of a given state shall be construed, unless otherwise
42-11 expressed, as directly referring to the substantive law of that
42-12 state and not to its conflict of laws rules.
42-13 (c) <Sec. 3.> If the parties do not make a designation under
42-14 Subsection (a) <Section 1 of this article>, the arbitral tribunal
42-15 shall apply the law determined by the conflict of laws rules that
42-16 it considers applicable.
42-17 (d) <Sec. 4.> The arbitral tribunal shall decide ex aequo et
42-18 bono or as amiable compositeur, if the parties have expressly
42-19 authorized it to do so.
42-20 (e) <Sec. 5.> In all cases, the arbitral tribunal shall
42-21 decide in accordance with the terms of the contract and shall take
42-22 into account the usages of the trade applicable to the transaction.
42-23 Sec. 172.252 <Art. 249-29>. Decisionmaking by panel of
42-24 arbitrators. Unless otherwise agreed by the parties, in arbitral
42-25 proceedings with more than one arbitrator, any decision of the
42-26 arbitral tribunal shall be made by a majority of all of its
42-27 members. Notwithstanding this section <article>, if authorized by
43-1 the parties or all the members of the arbitral tribunal, questions
43-2 of procedure may be decided by a presiding arbitrator.
43-3 Sec. 172.253 <Art. 249-30>. Settlement. (a) <Sec. 1.> An
43-4 arbitral tribunal may encourage settlement of the dispute and, with
43-5 the agreement of the parties, may use mediation, conciliation, or
43-6 other procedures at any time during the arbitral proceedings to
43-7 encourage settlement.
43-8 (b) <Sec. 2.> If, during arbitral proceedings, the parties
43-9 settle the dispute, the arbitral tribunal shall terminate the
43-10 proceedings and, if requested by the parties and not objected to by
43-11 the arbitral tribunal, record the settlement in the form of an
43-12 award on agreed terms.
43-13 (c) <Sec. 3.> An award on agreed terms shall be made as
43-14 provided by Section 172.254 <Article 249-31, Revised Statutes,> and
43-15 shall state that it is an arbitral award.
43-16 (d) <Sec. 4.> An award on agreed terms has the same status
43-17 and effect as any other arbitral award on the substance of the
43-18 dispute.
43-19 Sec. 172.254 <Art. 249-31>. Form and content of arbitral
43-20 award. (a) <Sec. 1.> An arbitral award must be in writing and
43-21 signed by the members of the arbitral tribunal.
43-22 (b) <Sec. 2.> For the purposes of Subsection (a) <Section 1
43-23 of this article>, in arbitral proceedings with more than one
43-24 arbitrator, the signatures of the majority of all the members of
43-25 the arbitral tribunal are sufficient if the reason for any omitted
43-26 signature is stated.
43-27 (c) <Sec. 3.> The award must state the reasons on which it
44-1 is based, unless the parties have agreed that no reasons are to be
44-2 given, or the award is an award on agreed terms under Section
44-3 172.253 <Article 249-30, Revised Statutes>.
44-4 (d) <Sec. 4.> The award must state its date and the place of
44-5 arbitration as determined under Section 172.203 <Article 249-20,
44-6 Revised Statutes>, and the award is considered to have been made at
44-7 that place.
44-8 (e) <Sec. 5.> After the award is made, a signed copy shall
44-9 be delivered to each party.
44-10 (f) <Sec. 6.> The arbitral tribunal may, at any time during
44-11 the proceedings, make an interim award on any matter with respect
44-12 to which it may make a final award. The interim award may be
44-13 enforced in the same manner as a final award.
44-14 (g) <Sec. 7.> Unless otherwise agreed by the parties, the
44-15 arbitral tribunal may award interest.
44-16 (h) <Sec. 8. (a)> Unless otherwise agreed by the parties,
44-17 the costs of an arbitration are at the discretion of the arbitral
44-18 tribunal.
44-19 (i) <(b)> In making an order for costs, the arbitral
44-20 tribunal may include as costs:
44-21 (1) the fees and expenses of the arbitrators and
44-22 expert witnesses;
44-23 (2) legal fees and expenses;
44-24 (3) administration fees of the institution supervising
44-25 the arbitration, if any; and
44-26 (4) any other expenses incurred in connection with the
44-27 arbitral proceedings.
45-1 (j) <(c)> In making an order for costs, the arbitral
45-2 tribunal may specify:
45-3 (1) the party entitled to costs;
45-4 (2) the party who shall pay the costs;
45-5 (3) the amount of costs or method of determining that
45-6 amount; and
45-7 (4) the manner in which the costs shall be paid.
45-8 Sec. 172.255 <Art. 249-32>. Termination of proceedings.
45-9 (a) <Sec. 1.> The arbitral proceedings are terminated by the
45-10 final arbitral award or by an order of the arbitral tribunal under
45-11 Subsection (b) <Section 2 of this article>. The award is final on
45-12 the expiration of the applicable period in Section 172.256 <Article
45-13 249-33, Revised Statutes>.
45-14 (b) <Sec. 2.> The arbitral tribunal shall issue an order for
45-15 the termination of the arbitral proceedings if:
45-16 (1) the claimant withdraws the claim, unless the
45-17 respondent objects to the order and the arbitral tribunal
45-18 recognizes a legitimate interest on the respondent's part in
45-19 obtaining a final settlement of the dispute;
45-20 (2) the parties agree on the termination of the
45-21 proceedings; or
45-22 (3) the arbitral tribunal finds that continuation with
45-23 the proceedings has for any other reason become unnecessary or
45-24 impossible.
45-25 (c) <Sec. 3.> Subject to Section 172.256 <Article 249-33,
45-26 Revised Statutes>, the mandate of the arbitral tribunal ends with
45-27 the termination of the arbitral proceedings.
46-1 Sec. 172.256 <Art. 249-33>. Correction and interpretation of
46-2 awards and additional awards. (a) <Sec. 1.> Within 30 days after
46-3 the date of receipt of the arbitral award, unless another period
46-4 has been agreed to by the parties:
46-5 (1) a party may request the arbitral tribunal to
46-6 correct in the award any computation, clerical, or typographical
46-7 errors or other errors of a similar nature; and
46-8 (2) a party may, if agreed by the parties, request the
46-9 arbitral tribunal to give an interpretation of a specific point or
46-10 part of the award.
46-11 (b) <Sec. 2.> If the arbitral tribunal considers any request
46-12 made under Subsection (a) <Section 1 of this article> to be
46-13 justified, it shall make the correction or give the interpretation
46-14 within 30 days after the date of receipt of the request, and the
46-15 interpretation shall become part of the award.
46-16 (c) <Sec. 3.> The arbitral tribunal may correct an error of
46-17 the type referred to in Subsection (a)(1) <Subdivision (1) of
46-18 Section 1 of this article> on its own initiative within 30 days
46-19 after the date of the award.
46-20 (d) <Sec. 4.> Unless otherwise agreed by the parties, a
46-21 party, within 30 days after the date of receipt of the award, may
46-22 request the arbitral tribunal to make an additional award for any
46-23 claim presented in the arbitral proceedings but omitted from the
46-24 award.
46-25 (e) <Sec. 5.> If the arbitral tribunal considers a request
46-26 made under Subsection (d) <Section 4 of this article> to be
46-27 justified, it shall make the additional award within 60 days after
47-1 the date of receipt of the request.
47-2 (f) <Sec. 6.> The arbitral tribunal may extend, if
47-3 necessary, the period within which it may make a correction, give
47-4 an interpretation, or make an additional award under Subsection (b)
47-5 or (e) <Section 2 or 5 of this article>.
47-6 (g) Section 172.254 <Sec. 7. Article 249-31, Revised
47-7 Statutes,> applies to a correction or interpretation of the award
47-8 or to an additional award made under this section <article>.
47-9 (Sections 172.257 to 172.300 reserved for expansion
47-10 SUBCHAPTER <SUBDIVISION> G. PROVISIONS RELATING
47-11 SOLELY TO CONCILIATION
47-12 Sec. 172.301 <Art. 249-34>. Appointment of conciliators.
47-13 (a) <Sec. 1.> It is the policy of this state to encourage parties
47-14 to an international commercial agreement or transaction that
47-15 qualifies for arbitration or conciliation under Section 172.001(c)
47-16 <3 of Article 249-1, Revised Statutes,> to resolve disputes arising
47-17 from those agreements or transactions through conciliation. The
47-18 parties may select or permit an arbitral tribunal or other third
47-19 party to select one or more persons to serve as the conciliator or
47-20 conciliators who shall assist the parties in an independent and
47-21 impartial manner in their attempt to reach an amicable settlement
47-22 of their dispute.
47-23 (b) <Sec. 2.> A conciliator shall be guided by principles of
47-24 objectivity, fairness, and justice, giving consideration to, among
47-25 other things, the rights and obligations of the parties, the usages
47-26 of the trade concerned, and the circumstances surrounding the
47-27 dispute, including any previous practices between the parties.
48-1 (c) <Sec. 3.> The conciliator or conciliators may conduct
48-2 the conciliation proceedings in a manner that the conciliator
48-3 considers appropriate, considering the circumstances of the case,
48-4 the wishes of the parties, and the desirability of a speedy
48-5 settlement of the dispute. Except as otherwise provided by this
48-6 chapter <part>, other provisions of the law of this state governing
48-7 procedural matters do not apply to conciliation proceedings brought
48-8 under this chapter <part>.
48-9 Sec. 172.302 <Art. 249-35>. Representation and assistance.
48-10 The parties may appear in person or be represented or assisted by
48-11 any person of their choice.
48-12 Sec. 172.303 <Art. 249-36>. Report of conciliators.
48-13 (a) <Sec. 1.> At any time during the proceedings, the conciliator
48-14 or conciliators may prepare a draft conciliation settlement which
48-15 may include the assessment and apportionment of costs between the
48-16 parties and send copies to the parties, specifying the time within
48-17 which they must signify their approval.
48-18 (b) <Sec. 2.> A party may not be required to accept a
48-19 settlement proposed by the conciliator or conciliators.
48-20 Sec. 172.304 <Art. 249-37>. Confidentiality. <Sec. 1.> (a)
48-21 Evidence of anything said or of an admission made in the course of
48-22 a conciliation is not admissible in evidence, and disclosure of
48-23 that evidence may not be compelled in any arbitration or civil
48-24 action in which, under law, testimony may be compelled to be given.
48-25 However, this subsection does not limit the admissibility of
48-26 evidence if all parties participating in conciliation consent to
48-27 its disclosure.
49-1 (b) If evidence is offered in violation of this section, the
49-2 arbitral tribunal or the court shall make any order it considers
49-3 appropriate to deal with the matter, including an order restricting
49-4 the introduction of evidence or dismissing the case without
49-5 prejudice.
49-6 (c) Unless the document otherwise provides, a document
49-7 prepared for the purpose of, in the course of, or pursuant to the
49-8 conciliation or a copy of the document is not admissible in
49-9 evidence, and disclosure of the document may not be compelled in
49-10 any arbitration or civil action in which, under law, testimony may
49-11 be compelled to be given.
49-12 Sec. 172.305 <Art. 249-38>. Stay of arbitration and resort
49-13 to other proceedings. (a) <Sec. 1.> The agreement of the parties
49-14 to submit a dispute to conciliation is considered an agreement
49-15 between or among those parties to stay all judicial or arbitral
49-16 proceedings from the beginning of conciliation until the
49-17 termination of conciliation proceedings.
49-18 (b) <Sec. 2.> All applicable limitation periods, including
49-19 periods of prescription, are tolled or extended on the beginning of
49-20 conciliation proceedings under this chapter <part> as to all
49-21 parties to the conciliation proceedings until the 10th day
49-22 following the date of termination of the proceedings. For purposes
49-23 of this section <article>, conciliation proceedings are considered
49-24 to have begun when a party has requested conciliation of a
49-25 particular dispute or disputes and the other party or parties agree
49-26 to participate in the conciliation proceedings.
49-27 Sec. 172.306 <Art. 249-39>. Termination. (a) <Sec. 1.> A
50-1 conciliation proceeding may be terminated as to all parties by:
50-2 (1) a written declaration of the conciliator or
50-3 conciliators, after consultation with the parties, that further
50-4 efforts at conciliation are no longer justified, on the date of the
50-5 declaration;
50-6 (2) a written declaration of the parties addressed to
50-7 the conciliator or conciliators that the conciliation proceedings
50-8 are terminated, on the date of the declaration; or
50-9 (3) the signing of a settlement agreement by all of
50-10 the parties, on the date of the agreement.
50-11 (b) <Sec. 2.> The conciliation proceedings may be terminated
50-12 as to particular parties by:
50-13 (1) a written declaration of a party to the other
50-14 party or parties and the conciliator or conciliators, if appointed,
50-15 that the conciliation proceedings are to be terminated as to that
50-16 party, on the date of the declaration; or
50-17 (2) the signing of a settlement agreement by some of
50-18 the parties, on the date of the agreement.
50-19 (c) <Sec. 3.> A person who has served as conciliator may not
50-20 be appointed as an arbitrator for or take part in any arbitral or
50-21 judicial proceedings in the same dispute unless all parties consent
50-22 to the participation or the rules adopted for conciliation or
50-23 arbitration provide otherwise.
50-24 (d) <Sec. 4.> A party by submitting to conciliation is not
50-25 considered to have waived any rights or remedies that party would
50-26 have had if conciliation had not been initiated, other than those
50-27 set forth in any settlement agreement resulting from the
51-1 conciliation.
51-2 Sec. 172.307 <Art. 249-40>. Enforceability of decree. If
51-3 the conciliation settles the dispute and the result of the
51-4 conciliation is in writing and signed by the conciliator or
51-5 conciliators and the parties or their representatives, the written
51-6 agreement shall be treated as an arbitral award rendered by an
51-7 arbitral tribunal and shall have the same force and effect as a
51-8 final award in arbitration.
51-9 Sec. 172.308 <Art. 249-41>. Costs. (a) <Sec. 1.> On
51-10 termination of the conciliation proceedings, the conciliator shall
51-11 set the costs of the conciliation and give written notice of the
51-12 costs to the parties. For the purposes of this section <article>,
51-13 "costs" includes only:
51-14 (1) a reasonable fee to be paid to the conciliator or
51-15 conciliators;
51-16 (2) travel and other reasonable expenses of the
51-17 conciliator or conciliators;
51-18 (3) travel and other reasonable expenses of witnesses
51-19 requested by the conciliator or conciliators with the consent of
51-20 the parties;
51-21 (4) the cost of any expert advice requested by the
51-22 conciliator or conciliators with the consent of the parties; and
51-23 (5) the cost of any court.
51-24 (b) <Sec. 2.> Costs shall be borne equally by the parties
51-25 unless the settlement agreement provides for a different
51-26 apportionment. All other expenses incurred by a party shall be
51-27 borne by that party.
52-1 Sec. 172.309 <Art. 249-42>. Effect on jurisdiction. The
52-2 request for conciliation, the consent to participate in the
52-3 conciliation proceedings, the participation in the proceedings, or
52-4 the entering into a conciliation agreement or settlement does not
52-5 constitute consent to the jurisdiction of any court in this state
52-6 if conciliation fails.
52-7 Sec. 172.310 <Art. 249-43>. Immunity of conciliators and
52-8 parties. (a) <Sec. 1.> A conciliator, party, or representative
52-9 of a conciliator or party, while present in this state for the
52-10 purpose of arranging for or participating in conciliation under
52-11 this chapter <part>, is not subject to service of process on any
52-12 civil matter related to the conciliation.
52-13 (b) <Sec. 2.> A person who serves as a conciliator may not
52-14 be held liable in an action for damages resulting from any act or
52-15 omission in the performance of the person's role as a conciliator
52-16 in any proceeding subject to this chapter <part>.
52-17 SECTION 2. This Act takes effect September 1, 1995.
52-18 SECTION 3. The importance of this legislation and the
52-19 crowded condition of the calendars in both houses create an
52-20 emergency and an imperative public necessity that the
52-21 constitutional rule requiring bills to be read on three several
52-22 days in each house be suspended, and this rule is hereby suspended.