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Member Arbitration Rules
SECTION 9. HEARING.
[Adopted effective February 18, 1992. Effective dates of amendments: December 1, 1992; May 1, 1994; June 23, 1997; May 1, 2001; March 1, 2002; June 1, 2006; October 15, 2007; October 1, 2009 and October 6, 2020.]
(a) Preliminary Hearing.
The Panel may, at the written request of a party or on its own motion, schedule a preliminary hearing in extraordinary circumstances. Such hearing may be conducted orally, by telephone conference, or by written submissions.
(b) Place, Time and Notice of Hearing.
Except as provided in Section 7(h) or Paragraph (i) of this Section, the place and time of the hearing shall be determined in the sole discretion of the Secretary, who shall endeavor to accommodate, if possible, the preferences of all parties as indicated in a timely-filed pleading. Upon setting the initial hearing date, NFA shall serve notice on each party at least 45 days before the hearing of the date, time and place. NFA shall give reasonable notice of any rescheduled oral hearing date. In extraordinary circumstances, the Panel (or the sole arbitrator for cases involving only one arbitrator) shall have the authority to order that the hearing take place on a virtual basis using an electronic online meeting provider with audio and/or video capabilities.
(c) Failure to Prosecute or Defend.
At the written request of any party or on its own motion, the Panel may review the procedural history of the proceeding and any written submissions and may find that a party had failed to prosecute or defend the proceeding. Any party found to have failed to prosecute or defend the proceeding will be deemed to have waived his right to an oral hearing.
(1) Each party may appear personally at an oral hearing to testify and produce evidence.
(2) Each party (or the party's representative) may present opening and closing arguments, and may examine any other party or witness at an oral hearing and any evidence produced at the oral hearing.
(3) The Panel need not apply the technical rules of evidence.
(4) Any party may cause a verbatim record of an oral hearing to be made at its own expense.
(5) All testimony at the oral hearing shall be given under oath.
(6) The Panel may allow stipulations and establish other procedures as appropriate to expedite the hearing. The Panel may consider affidavits but shall give them such weight as it deems appropriate after considering objections to them.
(7) The Panel may order Members, employees thereof, and Associates to testify and produce documentary evidence. The Panel may issue subpoenas to non-Members as authorized by law. The parties must submit all subpoena requests to the Panel and serve those requests in accordance with Section 15(b) below. Subpoenas issued by the Panel may be enforced in a court of competent jurisdiction.
(8) The party requesting the appearance of a non-party witness shall bear all reasonable costs of such appearance. For purposes of this section, an employee or an Associate of any party shall be considered a party witness.
(9) All conduct and statements, offers and promises, whether oral or written, made by the parties or their representatives in connection with a mediation proceeding shall be confidential and shall not be admissible for any purpose, including impeachment, in any pending or subsequent arbitration proceeding. The mediator may not be called as a witness in a pending or subsequent arbitration proceeding.
(10) In all other respects, the hearing procedures shall be determined by the Panel. The Panel shall afford the parties every reasonable opportunity to present their case completely.
(e) Extensions and Postponements.
Extensions of time or postponements of the hearing may be granted by the Panel when the interests of justice so require, but a hearing in progress shall not be adjourned or interrupted except in compelling circumstances. If a Member or Associate party withdraws from NFA membership during the course of an arbitration proceeding within 60 days of the scheduled hearing, then the Panel shall grant a postponement of the hearing when requested by another party in the proceeding that has a claim against the withdrawing Member or Associate.
(f) Failure to Comply.
The failure of any party to appear at any hearing or any session thereof, or to comply with any notice, order, or procedure in connection therewith, may subject the party to such adverse action as the Panel deems appropriate, including the entry of an award or the dismissal of a claim.
(g) Reopening the Record.
The record may be reopened by the Panel on its own motion or on the motion of a party for good cause at any time prior to the Panel rendering its award. A motion to reopen the record shall automatically stay the time period in which the award shall be rendered.
(h) Waiver of Defects.
Where appropriate, the Panel may excuse any failure to comply with any provision of this section, or any Panel notice, order or procedure.
(i) Summary Proceeding.
The proceedings shall be conducted entirely through written submissions when:
(1) the aggregate amount of the claims (exclusive of interest and costs) does not exceed $50,000, unless the Secretary of the Panel directs otherwise; or
(2) the Panel has consented to the written agreement of the parties to waive the oral hearing. A written agreement is not required of any party that has waived its right to an oral hearing under any other provision of these Rules.