1998 Regular Session
To: Judiciary A
By: Representative Chaney
House Bill 472
AN ACT TO ESTABLISH ARBITRATION PROCEDURES FOR BANKS AND FINANCIAL INSTITUTIONS; TO ESTABLISH THE VALIDITY OF AN ARBITRATION AGREEMENT; TO SET FORTH PROCEDURES FOR COMPELLING OR STAYING ARBITRATION; TO PROVIDE FOR APPOINTMENT OF ARBITRATORS BY THE COURT IF THE ARBITRATION AGREEMENT DOES NOT PROVIDE A METHOD OF APPOINTMENT; TO REQUIRE MAJORITY ACTION BY THE ARBITRATORS; TO SET FORTH PROCEDURES FOR PREHEARING DISCOVERY OF EVIDENCE, A HEARING ON THE MATTER, THE ISSUANCE OF SUBPOENAS FOR WITNESSES AND DOCUMENTS AND AN AWARD IN THE CASE OF ARBITRATION UNDER THE PROVISIONS OF THIS ACT; TO PROVIDE FOR PAYMENT OF THE EXPENSES OF ARBITRATION; TO PROVIDE THAT THE COURT SHALL CONFIRM OR VACATE AN ARBITRATION AWARD; TO PROVIDE FOR MODIFICATION OR CORRECTION OF AN AWARD; TO SET FORTH JURISDICTION AND VENUE UNDER THIS ACT; TO PROVIDE PROCEDURES FOR APPEALS FROM AWARDS UNDER THIS ACT; TO AMEND SECTION 11-15-1, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Except as otherwise provided in this subsection, a written agreement to submit any controversy involving banks or financial institutions to arbitration or a provision in a written agreement or contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. Any pre-prepared form contract must contain a clause that clearly articulates an agreement to arbitrate, with a separate signature required of the nondrafting party to the effect that he has read the arbitration clause and understands that he is agreeing to submit to arbitration any controversy involving banks or financial institutions arising out of the contract or any consumer contract entered into without approval by signature of an attorney for such consumer. However, the nondrafting party to any pre-prepared form contract or any consumer contract entered into without approval by signature of an attorney for such consumer shall have the right to abrogate any agreement to arbitrate at any time before the commencement of any arbitration hearing and, upon such abrogation, shall be entitled to seek enforcement of the remaining terms of the agreement as otherwise provided by law. Notwithstanding the foregoing, a written agreement entered into upon the advice of counsel to parties to an existing dispute as evidenced by a written agreement signed by counsel to parties after the controversy has arisen is valid, enforceable and irrevocable.
SECTION 2. (1) On application of a party showing an agreement described in Section 1 of this act, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.
(2) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
(3) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (1) of this section, the application shall be made therein. Otherwise and subject to Section 18 of this act, the application may be made in any court of competent jurisdiction.
(4) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
(5) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or is frivolous or because any fault or grounds for the claim sought to be arbitrated have not been shown.
(6) If an arbitration agreement has been executed in Mississippi, any action or proceeding involving an issue subject to arbitration under such agreement shall proceed within the State of Mississippi and under Mississippi state law unless otherwise provided in the agreement or explicitly waived after the action or proceeding has commenced.
SECTION 3. If the arbitration agreement provides a method of appointment of arbitrators, such method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement.
SECTION 4. The powers of the arbitrators may be exercised by a majority unless otherwise provided by the agreement or by this act.
SECTION 5. Unless otherwise provided by the agreement:
(a) The arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered or certified mail not less than five (5) days before the hearing. Appearance at the hearing waives such notice, except that a party to a written agreement providing for arbitration, or to a contract containing a provision providing for arbitration of disputes arising therefrom, may not waive actual notice of such a hearing. The arbitrators may adjourn the hearing from time to time as necessary and, on request of a party and for good cause, or upon their own motion, may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy.
(b) The parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.
(c) The hearing shall be conducted by all the arbitrators, but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.
SECTION 6. A party has the right to be represented by an attorney at any proceeding or hearing under this act. A waiver thereof before the proceeding or hearing is ineffective.
SECTION 7. (1) The arbitrators may issue or cause to be issued subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served and, upon application to the court by a party or the arbitrators, enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.
(2) On application of a party and for use as evidence, the arbitrators may permit a deposition by oral examination to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.
(3) All provisions of law compelling a person under subpoena to testify are applicable.
(4) Fees for attendance as a witness shall be the same as for a witness in the circuit court.
SECTION 8. (1) The award shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy to each party personally or by registered mail, or as provided in the agreement.
(2) An award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on application of a party. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objections prior to the delivery of the award to him.
SECTION 9. On application of a party or, if an application to the court is pending under Section 11, 12 or 13 of this act, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in Sections 13(1)(a) and (c) or for the purpose of clarifying the award. The application shall be made within twenty (20) days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he must serve his objections thereto, if any, within ten (10) days from the notice. The award so modified or corrected is subject to the provisions of Sections 11, 12 and 13 hereof.
SECTION 10. Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses incurred in the conduct of the arbitration, shall be paid as provided in the award.
SECTION 11. Upon application of a party, the court shall confirm an award unless, within the time limits hereinafter imposed, grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in Sections 12 and 13 hereof.
SECTION 12. (1) Upon application of a party, the court shall vacate an award where:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(c) The arbitrators exceed their powers;
(d) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
(e) There was no actual notice of the hearing provided to the moving party under Section 5(a).
But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.
(2) An application under this section shall be made within ninety (90) days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud, other undue means, or failure to receive actual notice under Section 5(a), it shall be made within ninety (90) days after such grounds are known or should have been known.
(3) In vacating the award the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with Section 3 hereof, or, if the award is vacated on grounds set forth in subsections (1)(c) and (d) of this section, the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with Section 3. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.
(4) If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.
SECTION 13. (1) Upon application made within ninety (90) days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(b) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(c) The award is imperfect as a matter of form, not affecting the merits of the controversy.
(2) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
(3) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
SECTION 14. Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceeding subsequent thereto, and disbursements may be awarded by the court.
SECTION 15. (1) On entry of judgment or decree, the clerk shall prepare the judgment roll consisting, to the extent filed, of the following:
(a) The agreement and each written extension of the time within which to make the award;
(b) The award;
(c) A copy of the order confirming, modifying or correcting the award; and
(d) A copy of the judgment or decree.
(2) The judgment or decree shall be docketed as if rendered in an action.
SECTION 16. Except as otherwise provided, an application to the court under this act 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.
SECTION 17. The term "court" means circuit or chancery court of the county wherein the agreement was made or performed. The making of an agreement described in Section 1 of this act providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this act and to enter judgment on an award thereunder.
SECTION 18. An initial application shall be made to the appropriate court of the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise, the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the circuit or chancery court of any county. All subsequent applications shall be made to the court hearing the initial application unless the court otherwise directs.
SECTION 19. (1) An appeal may be taken from:
(a) An order denying an application to compel arbitration made under Section 2 hereof;
(b) An order granting an application to stay arbitration made under Section 2(2) hereof;
(c) An order confirming or denying confirmation of an award;
(d) An order modifying or correcting an award;
(e) An order vacating an award without directing a rehearing; or
(f) A judgment or decree entered pursuant to the provisions of this act.
(2) The appeal shall be taken to the Supreme Court in the manner and to the same extent as from orders or judgments in a civil action.
SECTION 20. This act applies to agreements involving banks or financial institutions containing arbitration provisions made after July 1, 1998.
SECTION 21. The provisions of this act shall not apply to any claim arising out of any contract of insurance of any type or form.
SECTION 22. This act shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
SECTION 23. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given without the invalid provision or application, and to this end the provisions of this act are severable.
SECTION 24. Section 11-15-1, Mississippi Code of 1972, is amended as follows:
11-15-1. Except as otherwise provided by House Bill No. , 1998 Regular Session, all persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, which might be the subject of an action, and may, in such submission, agree that the court having jurisdiction of the subject matter shall render judgment on the award made pursuant to such submission. In such case, however, should the parties agree upon a court without jurisdiction of the subject matters of the award, the judgment shall be rendered by the court having jurisdiction in the county of the residence of the party, or some one of them, against whom the award shall be made.
SECTION 25. This act shall take effect and be in force from and after July 1, 1998.