Article 45B.

International Commercial Arbitration and Conciliation.

Part 1.  General Provisions.

1-567.30.  Preamble and short title.

It is the policy of the State of North Carolina to promote and facilitate international trade and commerce, and to provide a forum for the resolution of disputes that may arise from participation therein. Pursuant to this policy, the purpose of this Article is to encourage the use of arbitration or conciliation as a means of resolving such disputes, to provide rules for the conduct of arbitration or conciliation proceedings, and to assure access to the courts of this State for legal proceedings ancillary to such arbitration or conciliation. This Article shall be known as the North Carolina International Commercial Arbitration and Conciliation Act. (1991, c. 292, s. 1; 1997-368, ss. 1, 2, 5.)

 

1-567.31.  Scope of application.

(a)        This Article applies to international commercial arbitration and conciliation, subject to any applicable international agreement in force between the United States of America and any other nation or nations, or any federal statute.

(b)        The provisions of this Article, except G.S. 1-567.38, 1-567.39, and 1-567.65, apply only if the place of arbitration is in this State.

(c)        An arbitration or conciliation is international if:

(1)        The parties to the arbitration or conciliation agreement have their places of business in different nations when the agreement is concluded; or

(2)        One or more of the following places is situated outside the nations in which the parties have their places of business:

a.         The place of arbitration or conciliation if determined pursuant to the arbitration agreement;

b.         Any place where a substantial part of the obligations of the commercial relationship is to be performed; or

c.         The place with which the subject matter of the dispute is most closely connected; or

(3)        The parties have expressly agreed that the subject matter of the arbitration or conciliation agreement relates to more than one nation.

(d)       For the purposes of subsection (c) of this section:

(1)        If a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration or conciliation agreement;

(2)        If a party does not have a place of business, reference is to be made to the party's domicile.

(e)        An arbitration or conciliation, respectively, is deemed commercial for the purposes of this Article if it arises out of a relationship of a commercial nature, including, but not limited to the following:

(1)        A transaction for the exchange of goods and services;

(2)        A distribution agreement;

(3)        A commercial representation or agency;

(4)        An exploitation agreement or concession;

(5)        A joint venture or other related form of industrial or business cooperation;

(6)        The carriage of goods or passengers by air, sea, land, or road;

(7)        A contract or agreement relating to construction, insurance, licensing, factoring, leasing, consulting, engineering, financing, or banking;

(8)        The transfer of data or technology;

(9)        The use or transfer of intellectual or industrial property, including trade secrets, trademarks, trade names, patents, copyrights, and software programs;

(10)      A contract for the provision of any type of professional service, whether provided by an employee or an independent contractor.

(f)        This Article shall not affect any other law in force by virtue of which certain disputes may not be submitted to arbitration, conciliation, or mediation, or may be submitted to arbitration, conciliation, or mediation only according to provisions other than those of this Article.

(g)        This Article shall not apply to any agreement providing explicitly that it shall not be subject to the North Carolina International Commercial Arbitration and Conciliation Act. This Article shall not apply to any agreement executed prior to June 13, 1991. (1991, c. 292, s. 1; 1997-141, s. 1; 1997-368, s. 6.)

 

1-567.32.  Definitions and rules of interpretation.

(a)        For the purposes of this Article:

(1)        "Arbitral award" means any decision of an arbitral tribunal on the substance of a dispute submitted to it, and includes an interlocutory, or partial award;

(2)        "Arbitral tribunal" means a sole arbitrator or a panel of arbitrators;

(3)        "Arbitration" means any arbitration whether or not administered by a permanent arbitral institution;

(4)        "Party" means a party to an arbitration agreement;

(5)        "Superior court" means the superior court of any county in this State selected pursuant to G.S. 1-567.36.

(b)        Where a provision of this Article, except G.S. 1-567.58, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party, including an institution, to make that determination.

(c)        Where a provision of this Article refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement.

(d)       Where a provision of this Article, other than in G.S. 1-567.55(1) and G.S. 1-567.62(b)(1), refers to a claim, it also applies to a counterclaim, and where it refers to a defense, it also applies to a defense to such counterclaim. (1991, c. 292.)

 

1-567.33.  Receipt of written communications or submissions.

(a)        Unless otherwise agreed by the parties, any written communication or submission is deemed to have been received if it is delivered to the addressee personally or if it is delivered at the addressee's place of business, domicile or mailing address and the communication or submission is deemed to have been received on the day it is so delivered.  Delivery by facsimile transmission shall constitute valid receipt if the communication or submission is in fact received.

(b)        If none of the places referred to in subsection (a) can be found after making reasonable inquiry, a written communication or submission is deemed to have been received if it is sent to the addressee's last known place of business, domicile or mailing address by registered mail or any other means which provide a record of the attempt to deliver it.

(c)        The provisions of this Article do not apply to a written communication or submission relating to a court, administrative or special proceeding. (1991, c. 292.)

 

1-567.33A.  Severability.

In the event any provision of this act is held to be invalid, the court's holding as to that provision shall not affect the validity or operation of other provisions of the act; and to that end the provisions of the act are severable. (1991, c. 292, s. 1; 1997-368, s. 3.)

 

Part 2.  International Commercial Arbitration.

1-567.34.  Waiver of right to object.

A party who knows that any provision of this Article or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating an objection to such noncompliance without undue delay or, if a time limit is provided therefor, within that period of time, shall be deemed to have waived any right to object. (1991, c. 292.)

 

1-567.35.  Extent of court intervention.

In matters governed by this Article, no court shall intervene except where so provided in this Article or applicable federal law or any applicable international agreement in force between the United States of America and any other nation or nations. (1991, c. 292.)

 

1-567.36.  Venue and jurisdiction of courts.

(a)        The functions referred to in G.S. 1-567.41(c) and (d), 1-567.43(a), 1-567.44(b), 1-567.46(c), and 1-567.57 shall be performed by the superior court in:

(1)        The county where the arbitration agreement is to be performed or was made;

(2)        If the arbitration agreement does not specify a county where the agreement is to be performed and the agreement was not made in any county in the State of North Carolina, the county where any party to the court proceeding resides or has a place of business;

(3)        In any case not covered by subdivisions (1) or (2) of this subsection, in any county in the State of North Carolina.

(b)        All other functions assigned by this Article to the superior court shall be performed by the superior court of the county in which the place of arbitration is located. (1991, c. 292.)

 

1-567.37.  Definition and form of arbitration agreement.

(a)        An "arbitration agreement" is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether or not contractual.  An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(b)        The arbitration agreement shall be in writing.  An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams, facsimile transmission, or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another.  The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.

(c)        Such arbitration agreement shall be valid, enforceable and irrevocable, except with the consent of all the parties, without regard to the justiciable character of the controversy. (1991, c. 292.)

 

1-567.38.  Arbitration agreement and substantive claim before court.

(a)        When a party to an international commercial arbitration agreement as defined in this Article commences judicial proceedings seeking relief with respect to a matter covered by the agreement to arbitrate, any other party to the agreement may apply to the superior court for an order to stay the proceedings and compel arbitration.

(b)        Arbitration proceedings may begin or continue, and an award may be made, while an action described in subsection (a) is pending before the court. (1991, c. 292.)

 

1-567.39.  Interim relief and the enforcement of interim measures.

(a)        In the case of an arbitration where the arbitrator or arbitrators have not been appointed, or where the arbitrator or arbitrators are unavailable, a party may seek interim relief directly from the superior court as provided in subsection (c).  Enforcement shall be granted as provided by the law applicable to the type of interim relief sought.

(b)        In all other cases, a party shall seek interim measures under G.S. 1-567.47 from the arbitral tribunal and shall have no right to seek interim relief from the superior court, except that a party to an arbitration governed by this Article may request from the superior court enforcement of an order of an arbitral tribunal granting interim measures under G.S. 1-567.47.

(c)        In connection with an agreement to arbitrate or a pending arbitration, the superior court may grant, pursuant to subsection (a) of this section:

(1)        An order of attachment or garnishment;

(2)        A temporary restraining order or preliminary injunction;

(3)        An order for claim and delivery;

(4)        The appointment of a receiver;

(5)        Delivery of money or other property into court;

(6)        Any other order that may be necessary to ensure the preservation or availability either of assets or of documents, the destruction or absence of which would be likely to prejudice the conduct or effectiveness of the arbitration.

(d)       In considering a request for interim relief or the enforcement of interim measures, the court shall give preclusive effect to any finding of fact of the arbitral tribunal in the proceeding, including the probable validity of the claim that is the subject of the interim relief sought or the interim measures granted.

(e)        Where the arbitral tribunal has not ruled on an objection to its jurisdiction, the court shall not grant preclusive effect to the tribunal's findings until the court has made an independent finding as to the jurisdiction of the arbitral tribunal.  If the court rules that the arbitral tribunal did not have jurisdiction, the application for interim relief or the enforcement of interim measures shall be denied.  Such a ruling by the court that the arbitral tribunal lacks jurisdiction is not binding on the arbitral tribunal or subsequent judicial proceedings.

(f)        The availability of interim relief under this section may be limited by prior written agreement of the parties. (1991, c. 292, s. 1.)

 

1-567.40.  Number of arbitrators.

There shall be one arbitrator unless the parties agree on a greater number of arbitrators. (1991, c. 292.)

 

1-567.41.  Appointment of arbitrators.

(a)        A person of any nationality may be an arbitrator.

(b)        The parties may agree on a procedure of appointing the arbitral tribunal subject to the provisions of subsections (d) and (e) of this section.

(c)        (1)        If an agreement is not made under subsection (b) of this section, in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be made, upon request of a party, by the superior court.

(2)        In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, a sole arbitrator shall be appointed, upon request of a party, by the superior court.

(3)        In an arbitration involving more than two parties, if no agreement is reached under subsection (b) of this section, the superior court, on request of a party, shall appoint one or more arbitrators, as provided in G.S. 1-567.40.

(d)       The superior court, on request of any party, may take the necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment, if, under an appointment procedure agreed upon by the parties:

(1)        A party fails to act as required under such procedure; or

(2)        The parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure; or

(3)        A third party, including an institution, fails to perform any function entrusted to it under such procedure.

(e)        A decision of the superior court on a matter entrusted by subsection (c) or (d) of this section shall be final and not subject to appeal.

(f)        The superior court, in appointing an arbitrator, shall consider:

(1)        Any qualifications required of the arbitrator by the agreement of the parties;

(2)        Such other considerations as are likely to secure the appointment of an independent and impartial arbitrator;

(3)        In the case of a sole or third arbitrator, the advisability of appointing an arbitrator of a nationality other than those of the parties.

(g)        The parties may agree to employ an established arbitration institution to conduct the arbitration.  If they do not so agree, the superior court may in its discretion designate an established arbitration institution to conduct the arbitration.

(h)        Unless otherwise agreed, an arbitrator shall be entitled to compensation at an hourly or daily rate which reflects the size and complexity of the case, and the experience of the arbitrator.  If the parties are unable to agree on such a rate, the rate shall be determined by the arbitral institution chosen pursuant to subsection (g) of this section or by the arbitral tribunal, in either case subject to the review of the superior court upon the motion of any dissenting party. (1991, c. 292; 1993, c. 553, s. 6.)

 

1-567.42.  Grounds for challenge.

(a)        Except as otherwise provided in this Article, all persons whose names have been submitted for consideration for appointment or designation as arbitrators, or who have been appointed or designated as such, shall make a disclosure to the parties within 15 days of such submission, appointment, or designation of any information which might cause their impartiality to be questioned including, but not limited to, any of the following instances:

(1)        The person has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2)        The person served as a lawyer in the matter in controversy, or the person is or has been associated with another who has participated in the matter during such association, or has been a material witness concerning it;

(3)        The person served as an arbitrator in another proceeding involving one or more of the parties to the proceeding;

(4)        The person, individually or as a fiduciary, or such person's spouse or minor child residing in such person's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5)        The person, his or her spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person meets any of the following conditions:

a.         The person is or has been a party to the proceeding, or an officer, director, or trustee of a party;

b.         The person is acting or has acted as a lawyer in the proceeding;

c.         The person is known to have an interest that could be substantially affected by the outcome of the proceeding;

d.         The person is likely to be a material witness in the proceeding;

(6)        The person has a close personal or professional relationship with a person who meets any of the following conditions:

a.         The person is or has been a party to the proceeding, or an officer, director, or trustee of a party;

b.         The person is acting or has acted as a lawyer or representative in the proceeding;

c.         The person is or expects to be nominated as an arbitrator or conciliator in the proceeding;

d.         The person is known to have an interest that could be substantially affected by the outcome of the proceeding;

e.         The person is likely to be a material witness in the proceeding.

(b)        The obligation to disclose information set forth in subsection (a) of this section is mandatory and cannot be waived as to the parties with respect to persons serving either as sole arbitrator or as the chief or prevailing arbitrator.  The parties may otherwise agree to waive such disclosure.

(c)        From the time of appointment and throughout the arbitral proceedings, an arbitrator shall disclose to the parties without delay any circumstances referred to in subsection (a) of this section which were not previously disclosed.

(d)       Unless otherwise agreed by the parties or the rules governing the arbitration, an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his or her independence or impartiality, or as to his or her possession of the qualifications upon which the parties have agreed.

(e)        A party may challenge an arbitrator appointed by it, or in whose appointment it has participated only for reasons of which it becomes aware after the appointment has been made. (1991, c. 292.)

 

1-567.43.  Challenge procedure.

(a)        The parties may agree on a procedure for challenging an arbitrator, subject to the provisions of subsection (c) of this section.

(b)        If there is no agreement under subsection (a) of this section, a party challenging an arbitrator shall, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in G.S. 1-567.42(a), send a written statement of the reasons for the challenge to the arbitral tribunal.  Unless the challenged arbitrator withdraws or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(c)        If a challenge under any procedure agreed upon by the parties or under the procedure of subsection (b) of this section is not successful, the challenging party may, within 30 days after having received notice of the decision rejecting the challenge, request the superior court to decide on the challenge, which decision shall be final and subject to no appeal.  While such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue to conduct the arbitral proceedings and make an award. (1991, c. 292.)

 

1-567.44.  Failure or impossibility to act.

(a)        The mandate of an arbitrator terminates if the arbitrator becomes unable to perform the arbitrator's functions or for other reasons fails to act without undue delay or the arbitrator withdraws or the parties agree to the termination.

(b)        If a controversy remains concerning any of the grounds referred to in subsection (a) of this section, a party may request the superior court to decide on the termination of the mandate.  The decision of the superior court shall be final and not subject to appeal.

(c)        If under this section or under G.S. 1-567.43, an arbitrator withdraws or otherwise agrees to the termination of his or her mandate, no acceptance of the validity of any ground referred to in this section or G.S. 1-567.43(b) shall be implied in consequence of such action. (1991, c. 292.)

 

1-567.45.  Appointment of substitute arbitrator.

(a)        Where the mandate of an arbitrator terminates for any reason, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(b)        Unless otherwise agreed by the parties:

(1)        Where the number of arbitrators is less than three and an arbitrator is replaced, any hearings previously held shall be repeated;

(2)        Where the presiding arbitrator is replaced, any hearings previously held shall be repeated;

(3)        Where the number of arbitrators is three or more and an arbitrator other than the presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(c)        Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section is not invalid because there has been a change in the composition of the tribunal. (1991, c. 292.)

 

1-567.46.  Competence of arbitral tribunal to rule on its jurisdiction.

(a)        The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.  For that purpose, an arbitration clause which forms a part of a contract shall be treated as an agreement independent of the other terms of the contract.  A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause, unless the arbitral tribunal finds that the arbitration clause was obtained by fraud, whether in the inducement or in the factum.

(b)        A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defense.  However, a party is not precluded from raising such a plea by the fact that the party has appointed, or participated in the appointment of, an arbitrator.  A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.  In either case, the arbitral tribunal may admit a later plea if it considers the delay justified.

(c)        The arbitral tribunal may rule on a plea referred to in subsection (b) of this section either as a preliminary question or in an award on the merits.  If the arbitral tribunal rules as a preliminary question that it has jurisdiction, after having received notice of that ruling, any party may request the superior court to decide the matter.  The decision of the superior court shall be final and not subject to appeal.  While such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. (1991, c. 292.)

 

1-567.47.  Power of arbitral tribunal to order interim measures.

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute, including an interim measure analogous to any type of interim relief specified in G.S. 1-567.39(c).  The arbitral tribunal may require any party to provide appropriate security, including security for costs as provided in G.S. 1-567.61(h)(2), in connection with such measure. (1991, c. 292.)

 

1-567.48.  Equal treatment of parties; representation by attorney.

(a)        The parties shall be treated with equality and each party shall be given a full opportunity to present its case.

(b)        A party has the right to be represented by an attorney at any proceeding or hearing under this Article.  A waiver of this right prior to the proceeding or hearing is ineffective. (1991, c. 292, s. 1; 1997-141, s. 2.)

 

1-567.49.  Determination of rules of procedure.

(a)        Subject to the provisions of this Article, the parties may agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(b)        If there is no agreement under subsection (a) of this section, the arbitral tribunal may, subject to the provisions of this Article, conduct the arbitration in such manner as it considers appropriate.  The power conferred upon the arbitral tribunal includes the power to order such discovery as it deems necessary and to determine the admissibility, relevance, materiality, and weight of any evidence.  Evidence need not be limited by the rules of evidence applicable in judicial proceedings, except as to immunities and privilege.  Each party shall have the burden of proving the facts relied on to support its claim, setoff, or defense. (1991, c. 292.)

 

1-567.50.  Place of arbitration.

(a)        The parties may agree on the place of arbitration.  If the parties do not agree, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(b)        Notwithstanding the provisions of subsection (a) of this section, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property, or documents. (1991, c. 292.)

 

1-567.51.  Commencement of arbitral proceedings.

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. (1991, c. 292.)

 

1-567.52.  Language.

(a)        The parties may agree on the language or languages to be used in the arbitral proceedings.  If the parties do not agree, the arbitral tribunal shall determine the language or languages to be used in the proceedings.  This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision, or other communication by the arbitral tribunal.

(b)        The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

(c)        The arbitral tribunal may employ one or more translators at the expense of the parties. (1991, c. 292.)

 

1-567.53.  Statements of claim and defense.

(a)        Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting its claim, the points at issue and the relief or remedy sought, and the respondent shall state its defenses and counterclaims or setoffs in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements.  The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence the party will submit.

(b)        Unless otherwise agreed by the parties, either party may amend or supplement a claim or defense during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.

(c)        If there are more than two parties to the arbitration, each party shall state its claims, setoffs, and defenses as provided in subsection (a) of this section. (1991, c. 292.)

 

1-567.54.  Hearings and written proceedings.

(a)        Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.  Unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

(b)        The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property, or documents.

(c)        All statements, documents, or other information supplied to the arbitral tribunal by one party shall be served on the other party and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be served on the parties.  The arbitral tribunal shall direct the timing of such service to protect the parties from undue surprise.

(d)       Unless otherwise agreed by the parties, all oral hearings and meetings in arbitral proceedings shall be held in camera.  Confidential information disclosed during the proceedings by the parties or by witnesses shall not be divulged by the arbitrator or arbitrators.  Unless otherwise agreed by the parties, or required by applicable law, the arbitral tribunal and the parties shall keep confidential all matters relating to the arbitration and the award.

(e)        The parties may agree on:

(1)        The attendance of a court reporter,

(2)        The creation of a transcript of proceedings, or

(3)        The making of an audio or video record of proceedings, at the expense of the parties.

Any party may provide for any of the actions specified in subdivisions (1) through (3) of this subsection at that party's own expense.

(f)        After asking the parties if they have any further testimony or evidentiary submissions and upon receiving negative replies or being satisfied that the record is complete, the arbitral tribunal may declare the hearings closed.  The arbitral tribunal may reopen the hearings, upon terms it considers just, at any time before the award is made. (1991, c. 292.)

 

1-567.55.  Default of a party.

Unless otherwise agreed by the parties, where, without showing sufficient cause:

(1)        The claimant fails to submit a statement of claim in accordance with G.S. 1-567.53(a), the arbitral tribunal shall terminate the proceedings;

(2)        The respondent fails to submit a statement of defense in accordance with G.S. 1-567.53(c), the arbitral tribunal shall continue to conduct the proceedings without treating such failure in itself as an admission of the claimant's allegations;

(3)        Any party fails to appear at a hearing or to produce documentary evidence as directed by the arbitral tribunal, the arbitral tribunal may continue to conduct the proceedings and make the award on the evidence before it. (1991, c. 292.)

 

1-567.56.  Expert appointed by arbitral tribunal.

(a)        Unless otherwise agreed by the parties, the arbitral tribunal:

(1)        May appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal;

(2)        May require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods, or other property for the expert's inspection.

(b)        Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to question the expert and to present expert witnesses on the points at issue. (1991, c. 292.)

 

1-567.57.  Court assistance in obtaining discovery and taking evidence.

(a)        The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the superior court assistance in obtaining discovery and taking evidence. The court may execute the request within its competence and according to its rules on discovery and taking evidence, and may impose sanctions for failure to comply with its orders. A subpoena may be issued as provided by G.S. 8-59, in which case the witness compensation provisions of G.S. 6-51, 6-53, and 7A-314 shall apply.

(b)        If the parties to two or more arbitration agreements agree, in their respective arbitration agreements or otherwise, to consolidate the arbitrations arising out of those agreements, the superior court, upon application by a party, may do any of the following:

(1)        Order the arbitrations to be consolidated on terms the court considers just and necessary;

(2)        If all the parties cannot agree on an arbitral tribunal for the consolidated arbitration, appoint an arbitral tribunal as provided by G.S. 1-567.41; and

(3)        If all the parties cannot agree on any other matter necessary to conduct the consolidated arbitration, make any other order it considers necessary. (1991, c. 292, s. 1; 1999-185, s. 2.)

 

1-567.58.  Rules applicable to substance of dispute.

(a)        The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute.  Any designation of the law or legal system of a given country or political subdivision thereof shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country or political subdivision and not to its conflict of laws rules.

(b)        Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

(c)        The arbitral tribunal shall decide ex aequo et bono (on the basis of fundamental fairness), or as amiable compositeur (as an "amicable compounder"), only if the parties have expressly authorized it to do so.

(d)       In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. (1991, c. 292, c. 761, s. 1.)

 

1-567.59.  Decision making by panel of arbitrators.

Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members.  However, questions of procedure may be decided by a presiding arbitrator, if authorized by the parties or all members of the arbitral tribunal. (1991, c. 292, s. 1.)

 

1-567.60.  Settlement.

(a)        An arbitral tribunal may encourage settlement of the dispute and, with the agreement of the parties, may use mediation, conciliation, or other procedures at any time during the arbitral proceedings to encourage settlement.

(b)        If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

(c)        An award on agreed terms shall be made in accordance with the provisions of G.S. 1-567.61 and shall state that it is an arbitral award.  Such an award shall have the same status and effect as any other award on the substance of the dispute. (1991, c. 292.)

 

1-567.61.  Form and contents of award.

(a)        The award shall be made in writing and shall be signed by the arbitrator or arbitrators.  In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.

(b)        The award shall not state the reasons upon which it is based, unless the parties have agreed that reasons are to be given.

(c)        The award shall state its date and the place of arbitration as determined in accordance with G.S. 1-567.50.  The award shall be considered to have been made at that place.

(d)       After the award is made, a copy signed by the arbitrator or arbitrators in accordance with subsection (a) of this section shall be delivered to each party.

(e)        The award may be denominated in foreign currency, by agreement of the parties or in the discretion of the arbitral tribunal if the parties are unable to agree.

(f)        Unless otherwise agreed by the parties, the arbitral tribunal may award interest.

(g)        The arbitral tribunal may award specific performance in its discretion to a party requesting an award of specific performance.

(h)        (1)        Unless otherwise agreed by the parties, the awarding of costs of an arbitration shall be at the discretion of the arbitral tribunal.

(2)        In making an order for costs, the arbitral tribunal may include as costs:

a.         The fees and expenses of the arbitrator or arbitrators, expert witnesses, and translators;

b.         Fees and expenses of counsel and of the institution supervising the arbitration, if any; and

c.         Any other expenses incurred in connection with the arbitral proceedings.

(3)        In making an order for costs, the arbitral tribunal may specify:

a.         The party entitled to costs;

b.         The party who shall pay the costs;

c.         The amount of costs or method of determining that amount; and

d.         The manner in which the costs shall be paid. (1991, c. 292.)

 

1-567.62.  Termination of proceedings.

(a)        The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with subsection (b) of this section.

(b)        The arbitral tribunal shall issue an order for the termination of the arbitral proceedings if:

(1)        The claimant withdraws the claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on the respondent's part in obtaining a final settlement of the dispute;

(2)        The parties agree on the termination of the proceedings; or

(3)        The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(c)        Subject to the provisions of G.S. 1-567.63, the mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings. (1991, c. 292.)

 

1-567.63.  Correction and interpretation of awards; additional awards.

(a)        Within 30 days of receipt of the award, unless another period of time has been agreed upon by the parties:

(1)        A party may request the arbitral tribunal to correct in the award any computation, clerical or typographical errors or other errors of a similar nature;

(2)        A party may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers such request to be justified, it shall make the correction or give the interpretation within 30 days of receipt of the request.  Such correction or interpretation shall become part of the award.

(b)        The arbitral tribunal may correct any error of the type referred to in subsection (a) on its own initiative within 30 days of the date of the award.

(c)        Unless otherwise agreed by the parties, within 30 days of receipt of the award, a party may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.  If the arbitral tribunal considers the request to be justified, it shall make the additional award within 60 days after the date of receipt of the request.

(d)       The arbitral tribunal may extend, if necessary, the period within which it shall make a correction, interpretation, or an additional award under subsection (a) or (c).

(e)        The provisions of G.S. 1-567.61 shall apply to a correction or interpretation of the award or to an additional award made under this section. (1991, c. 292.)

 

1-567.64.  Modifying or vacating of awards.

Subject to the relevant provisions of federal law or any applicable international agreement in force between the United States of America and any other nation or nations, an arbitral award may be vacated by a court only upon a showing that the award is tainted by illegality, or substantial unfairness in the conduct of the arbitral proceedings. In determining whether an award is so tainted, the superior court shall have regard to the provisions of this Article, and of G.S. 1-569.23 and G.S. 1-569.24, but shall not engage in de novo review of the subject matter of the dispute giving rise to the arbitration proceedings. (1991, c. 292, s. 1; 2003-345, s. 3.)

 

1-567.65.  Confirmation and enforcement of awards.

Subject to the relevant provisions of federal law or any applicable international agreement in force between the United States of America and any other nation or nations, upon application of a party, the superior court shall confirm an arbitral award, unless it finds grounds for modifying or vacating the award under G.S. 1-567.64.  An award shall not be confirmed unless the time for correction and interpretation of awards prescribed by G.S. 1-567.63 shall have expired or been waived by all the parties.  Upon the granting of an order confirming, modifying, or correcting an award, judgment or decree shall be entered in conformity therewith and enforced as any other judgment or decree.  The superior court may award costs of the application and of the subsequent proceedings. (1991, c. 292.)

 

1-567.66.  Applications to superior court.

Except as otherwise provided, an application to the superior court under this Article shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions.  Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action. (1991, c. 292.)

 

1-567.67.  Appeals.

(a)        An appeal may be taken from:

(1)        An order denying an application to compel arbitration made under G.S. 1-567.38;

(2)        An order granting an application to stay arbitration made under G.S. 1-567.38;

(3)        An order confirming or denying confirmation of an award;

(4)        An order modifying or correcting an award;

(5)        An order vacating an award without directing a rehearing; or

(6)        A judgment or decree entered pursuant to the provisions of this Article.

(b)        The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action. (1991, c. 292, s. 1.)

 

1-567.68:  Recodified as 1-567.33A by Session Laws 1997-368, s.  3.

 

1-567.69.  Reserved for future codification purposes.

 

1-567.70.  Reserved for future codification purposes.

 

1-567.71.  Reserved for future codification purposes.

 

1-567.72.  Reserved for future codification purposes.

 

1-567.73.  Reserved for future codification purposes.

 

1-567.74.  Reserved for future codification purposes.

 

1-567.75.  Reserved for future codification purposes.

 

1-567.76.  Reserved for future codification purposes.

 

1-567.77.  Reserved for future codification purposes.

 

Part 3. International Commercial Conciliation.

1-567.78.  Appointment of conciliators.

(a)        The parties may select or permit an arbitral tribunal or other third party to select one or more persons to serve as the conciliators.

(b)        The conciliator shall assist the parties in an independent and impartial manner in the parties' attempt to reach an amicable settlement of their dispute. The conciliator shall be guided by principles of objectivity, fairness, and justice and shall give consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned, and the circumstances surrounding the dispute, including any previous practices between the parties.

(c)        The conciliator may conduct the conciliation proceedings in a manner that the conciliator considers appropriate, considering the circumstances of the case, the wishes of the parties, and the desirability of a prompt settlement of the dispute. Except as otherwise provided by this Article, other provisions of the law of this State governing procedural matters do not apply to conciliation proceedings brought under this Part. (1997-368, s. 7.)

 

1-567.79.  Representation.

The parties may appear in person or be represented or assisted by any person of their choice. (1997-368, s. 7.)

 

1-567.80.  Report of conciliators.

(a)        At any time during the proceedings, a conciliator may prepare a draft conciliation agreement and send copies to the parties, specifying the time within which the parties must signify their approval. The draft conciliation agreement may include the assessment and apportionment of costs between the parties.

(b)        A party is not required to accept a settlement proposed by the conciliator. (1997-368, s. 7.)

 

1-567.81.  Confidentiality.

(a)        Evidence of anything said or of an admission made in the course of a conciliation is not admissible, and disclosure of that evidence shall not be compelled in any arbitration or civil action in which, under law, testimony may be compelled to be given. This subsection does not limit the admissibility of evidence when all parties participating in conciliation consent to its disclosure.

(b)        If evidence is offered in violation of this section, the arbitral tribunal or the court shall make any order it considers appropriate to deal with the matter, including an order restricting the introduction of evidence or dismissing the case.

(c)        Unless the document otherwise provides, a document prepared for the purpose of, in the course of, or pursuant to the conciliation, or a copy of such document, is not admissible in evidence, and disclosure of the document shall not be compelled in any arbitration or civil action in which, under law, testimony may be compelled. (1997-368, s. 7.)

 

1-567.82.  Stay of arbitration; resort to other proceedings.

(a)        The agreement of the parties to submit a dispute to conciliation is considered an agreement between or among those parties to stay all judicial or arbitral proceedings from the beginning of conciliation until the termination of conciliation proceedings.

(b)        All applicable limitation periods, including periods of prescription, are tolled or extended on the beginning of conciliation proceedings under this Part as to all parties to the conciliation proceedings until the tenth day following the date of termination of the proceedings. For purposes of this section, conciliation proceedings are considered to have begun when the parties have all agreed to participate in the conciliation proceedings. (1997-368, s. 7.)

 

1-567.83.  Termination of conciliation.

(a)        A conciliation proceeding may be terminated as to all parties by any one of the following means:

(1)        On the date of the declaration, a written declaration of the conciliators that further efforts at conciliation are no longer justified.

(2)        On the date of the declaration, a written declaration of the parties addressed to the conciliators that the conciliation proceedings are terminated.

(3)        On the date of the agreement, a conciliation agreement signed by all of the parties.

(4)        On the date of the order, order of the court when the matter submitted to conciliation is in litigation in the courts of this State.

(b)        A conciliation proceeding may be terminated as to particular parties by any one of the following means:

(1)        On the date of the declaration, a written declaration of the particular party to the other parties and the conciliators that the conciliation proceedings are to be terminated as to that party.

(2)        On the date of the agreement, a conciliation agreement signed by some of the parties.

(3)        On the date of the order, order of the court when the matter submitted to conciliation is in litigation in the courts of this State. (1997-368, s. 7.)

 

1-567.84.  Enforceability of decree.

If the conciliation proceeding settles the dispute and the result of the conciliation is in writing and signed by the conciliators and the parties or their representatives, the written agreement shall be treated as an arbitral award rendered by an arbitral tribunal under this Article and has the same force and effect as a final award in arbitration. (1997-368, s. 7.)

 

1-567.85.  Costs.

(a)        On termination of the conciliation proceeding, the conciliators shall set the costs of the conciliation and give written notice of the costs to the parties. For purposes of this section, "costs" includes all of the following:

(1)        A reasonable fee to be paid to the conciliators.

(2)        Travel and other reasonable expenses of the conciliators.

(3)        Travel and other reasonable expenses of witnesses requested by the conciliators, with the consent of the parties.

(4)        The cost of any expert advice requested by the conciliators, with the consent of the parties.

(5)        The cost of any court.

(b)        Costs shall be borne equally by the parties unless a conciliation agreement provides for a different apportionment. All other expenses incurred by a party shall be borne by that party. (1997-368, s. 7.)

 

1-567.86.  Effect on jurisdiction.

Requesting conciliation, consenting to participate in the conciliation proceedings, participating in conciliation proceedings, or entering into a conciliation agreement does not constitute consenting to the jurisdiction of any court in this State if conciliation fails. (1997-368, s. 7.)

 

1-567.87.  Immunity of conciliators and parties.

(a)        A conciliator, party, or representative of a conciliator or party, while present in this State for the purpose of arranging for or participating in conciliation under this Part, is not subject to service of process on any civil matter related to the conciliation.

(b)        A person who serves as a conciliator shall have the same immunity as judges from civil liability for their official conduct in any proceeding subject to this Part. This qualified immunity does not apply to acts or omissions which occur with respect to the operation of a motor vehicle. (1997-368, s. 7.)

 

1-568: Repealed by Session Laws 1951, c.  760, s. 2.

 

1-568.1 through 1-568.27.  Repealed by Session Laws 1967, c. 954, s. 4.

 

1-569.  Repealed by Session Laws 1951, c. 760, s. 2.