ARBITRATION RETAINER AGREEMENT

 

1. BACKGROUND AND PARTIES

 

The Parties ______________(the Claimant) and _______________, (the Respondent)have agreed to appoint Joseph Wamback Q. Arb,  as an arbitrator (Arbitrator) in the current pending dispute. The Parties agree that the cost of arbitration shall initially be shared by the Parties but those costs shall be subject to a future order in the discretion of the Arbitrator. The Parties agree that they are liable for the Arbitrators fees and each opposing Party will be responsible for an equal share of the said fees together with reasonable disbursements incurred by the Arbitrator and applicable HST, which may be invoiced from time to time. Any award of costs by the Arbitrator shall not affect each Parties responsibility to pay the Arbitrators accounts.

 

2. Neutrality:

 

The Parties understand and agree that the Arbitrator shall act in a strictly neutral capacity as a decision maker and not as a mediator or advocate for either Party.

 

3. Disclosures:

 

The Arbitrator has made a reasonable effort to learn and has disclosed to the parties: a) all business or professional relationships the Arbitrator and/or the Arbitrators firm has had with the Parties or their law firs within the past three (3) years; b) Any financial interest the Arbitrator has in any Party; and c) Any other circumstances that may create doubt regarding the Arbitrator’s impartiality in the arbitration. Each Party and its law firm has made a reasonable effort to learn and has disclosed to every other Party and the Arbitrator any relationships of a nature described in this paragraph not previously identified and disclosed by the Arbitrator. The Parties and the Arbitrator are satisfied that any relationships disclosed pursuant to this paragraph will not affect the Arbitrator’s independence or impartiality. Notwithstanding any such relationships, the Parties have chosen the Arbitrator to serve in arbitration, waiving any claim based on such relationships; and the Arbitrator agrees so to serve.

 

4. FUTURE WORK:

 

Neither the Arbitrator nor the Arbitrators firm shall undertake any work for or against any party regarding the subject matter of the arbitration. The Arbitrators firm may mediate or arbitrate other unrelated matters involving one or more of the Parties following the pendency of the arbitration and will disclose same to the Parties.

 

5. FEES:

 

Fees for services by the Arbitrator will be determined by the number of hours (or portion spent) on the matter plus expenses. The Arbitrator will bill on this basis for all time spent on the matter including initial contacts, electronic communications and telephone conferences, travel, reviewing submissions and other material in preparation for the hearing, hearing, post hearing deliberations and preparation of awards and reasons thereafter. The Arbitrator will charge an hourly rate of $ _________ per hour plus applicable HST, which rate will remain in effect for the duration of the arbitration. The Arbitrators time is billed in one tenth hour increments. Case management services are chargeable at the Arbitrators hourly fee. Expenses such as conference rooms, and meal charges long distance telephone charges transportation or copying charges will be billed at cost which in some cases may be estimated. Interim invoices may be prepared monthly and are payable on receipt. Other personal, such as paralegals, law students, clerks or recorders may be utilized to perform certain tasks such as research that the Arbitrator would otherwise be required to perform. Such personal will be billed and lower reasonable rates.

 

6. CANCELLATION POLICY:

 

If a scheduled arbitration hearing is cancelled more than seven (7) days before a session, deposits made for fees are refundable, except to the extent that Arbitrator preparation or other personnel time has already been incurred. Scheduled arbitration dates cancelled or rescheduled with less than seven (7) days notice will incur cancellation charges based upon an eight hour day for the first day reserved plus one third (1/3) of each later booked day t a maximum of four (4) additional days booked.

 

7. ADVANCE PAYMENT:

 

The Parties have agreed to share the Arbitrators fee and expenses as follows: The Parties pay an advance deposit, as estimated by the Arbitrator for fees and expenses set aside for the hearing. The Parties agree that this is an estimate only, and the Parties are responsible for all fees and expenses incurred by the Arbitrator. As described in paragraph 1, two thousand five hundred dollars ($2,500.00) deposit is to be given by each opposing Party as an advance amount prior to commencement of the case. All advance deposits not billed will be returned at the conclusion of the arbitration. If the advance deposit is exhausted prior to the completion of the arbitration the Parties may be asked to replenish the account. The Arbitrator reserves the right to suspend the proceedings in the event that any invoices are unpaid. The arbitration award shall not be released to the Parties until the accounts of the Arbitrator are paid.

 

8. DISQUALIFICATION OF ARBITRATOR AS WITNESS AND EXCLUSION OF LIABILITY:

 

The Parties agree not to call the Arbitrator as a witness or as an expert in any pending or subsequent litigation or arbitration involving any of the Parties to the arbitration. The Parties agree that neither they, nor any solicitor acting now, or hereafter, on behalf of any Party, will take any steps or invoke any legal process, for the purpose of compelling the Arbitrator to produce any documents or testify in any forum concerning any recollection whatsoever about any documents or utterances produced or made in connection with the arbitration proceedings unless the same is compellable on the grounds entirely independent of, and apart from, the holding of this arbitration process. The Parties agree defend and/or assume the costs and lawyers fees of defending the Arbitrator from any subpoenas from third parties arising out of this agreement or the arbitration and will indemnify the Arbitrator from all costs arising from breach of this agreement. The Parties agree that the Arbitrator will have the same immunity from liability for any act or omission in connection with the arbitration as judges have under applicable law.

 

9. COUNTERPARTS:

 

This Arbitration Retainer Agreement may be executed in counterparts, each which shall constitute an original, but all of which shall constitute one and the same agreement and delivery of an executed signature page by any Party by electronic transmission will be as effective as delivery of a manually original executed copy of such party. Agreed to and accepted by the Parties by their respective lawyers.

 

BY: ____________________________

FOR: ___________________________

DATE: __________________________

 

BY: ____________________________

FOR: ___________________________

DATE: __________________________

 

TYPICAL AGREEMENT TO ARBITRATE

 

We, the undersigned parties, hereby agree to submit to final and binding arbitration under the arbitration rules of the ARBITRATION ACT, S. O. 1991 the following controversy:

 

(briefly describe the controversy)

 

We further agree that the above controversy be submitted to (one or three) arbitrator(s) from a panel of arbitrators in accordance with the agreement attached hereto.

 

We further agreed that we will faithfully observe this agreement and the rules and that we will abide by and perform any award rendered by the arbitrator(s) and that a judgement of the court having jurisdiction may be entered upon award.

 

 

Signed on this ___day of ____ , _______ at ________________

 

Parties: __________________________ __________________________

 

 

_____________________________________________________________________________

 

 ARBITRATION AGREEMENT

 

 

THIS AGREEMENT, made this ____ day of _____, 20___

 

In the matter of the Arbitration Act, S. O. 1991

And in the matter of an arbitration between;

 

xxxxxxxxxxxxxxxxxxx

And

yyyyyyyyyyyyyyyyy

 

ARBITRATION AGREEMENT

 

WHEREAS, The Claimant ________________ (hereinafter referred to as xxxxxxxxxx) was awarded a contract as a General Contractor for the construction of a ____________________ ) hereinafter referred to as ____________). The said contract being awarded to _______________ on ___________ with construction to take place in the year _____________, construction having been substantially completed and there are disputes between the parties as to what monies remain due and owing to ______ _______ from __________.

 

AND WHEREAS the contract between the parties hereto provided for dispute resolution by way of arbitration in accordance with Ontario’s Arbitration Act S. O. 1991 ) hereinafter referred to as the Arbitration Act.

 

AND WHEREAS ___________ has asked for Arbitration and the parties wish to by this agreement elaborate upon and provide for additional terms related to the proceedings of the Arbitration, additional to that which is contained in the Arbitration Act and in the original contract.

 

IT IS PROVIDED AS FOLLOWS, in consideration of the mutual covenants contained herein, the parties hereby agree to as follows:

 

1. The parties confirm the following appointments:

a. ____________, as an expert arbitrator appointed by ______________.

b. ____________, as an expert arbitrator appointed by ______________.

c. ____________, appointed by the above named arbitrators as Chairman of the Tribunal.

 

2. The Tribunal shall determine all matters in dispute between the parties arising out of the contract which are properly subject to Arbitration pursuant to the contract and subject to Schedule “A” herein.

 

3. The parties agree to be bound by all the terms of this agreement; and to be bound by the rules, orders directions and decisions of the Tribunal respecting the procedure and conduct of the Arbitration as determined by them from time to time pursuant to the terms of this Agreement subject to this Agreement, the provisions of the contract, and the provisions of the Arbitration Act and such further agreement as the parties may make between themselves in writing.

 

4. The parties agree that the awards of the Tribunal shall be final and binding upon them, subject only to appeal on a question of law to the Ontario Court (General Division), which appeal may be brought by either party without requiring the leave of the court.

 

5. This agreement is binding upon the parties when signed by them or by their solicitors on their behalf. By so signing, the solicitors warrant their authority to do so on behalf of their clients.

 

6. The Tribunal shall have the [power, in its sole discretion, to award costs of the Arbitration in accordance with the Arbitration Act, and to direct by whom they are to be paid; and to award interest on awarded sums in accordance with the provisions of the contract (including General Conditions 40) and of the Arbitration Act as it incorporates provisions of the Courts of Justice Act. After the award has been made including any interest, the parties shall be entitled to make submissions on costs with costs to be fixed by the Tribunal.