43.5305 Error dispute resolution requirement.

Cite as [A.S.C.A. § 43.5305]

(a) Arbitration of disputes. At the request of any party, any dispute in which a Y-2K error is alleged in good faith as a claim or a defense shall be submitted to nonbinding arbitration. Unless otherwise agreed by the parties, the arbitrator shall be bound by the substantive and procedural provisions of this chapter, but shall not be bound by rules of evidence, whether or not set out by statute, except for provisions relating to privileged communications. The arbitrator shall permit discovery as provided for in the American Samoa rules of civil procedure; provided that the arbitrator may restrict the scope of such discovery for good cause to avoid excessive delay and costs to the parties.

(b) Determination of unsuitability. At any time within twenty days of being served with a written demand for arbitration, any party so served may apply to the High Court for a determination that the subject matter of the dispute is unsuitable for disposition by arbitration. In determining whether the subject matter of a dispute is unsuitable for disposition by arbitration, a court may consider:

(1) The magnitude of the potential award, or any issue of broad public concern raised by the subject matter underlying the dispute;

(2) Claims where court regulated discovery is necessary;

(3) The fact that the matter in dispute is a reasonable or necessary issue to be resolved in pending litigation and involves other matters not covered by or related to this chapter;

(4) The fact that the matter to be arbitrated is only part of a dispute involving other parties or issues which are not subject to arbitration; or

(5) Any matters of dispute where disposition by arbitration would not afford substantial justice to one or more of the parties.

(c) Any such application to the High Court shall be made and heard in a summary manner and in accordance with procedures for the making and hearing of motions. If the application is denied, the prevailing party shall be awarded its attorneys’ fees and costs in an amount not to exceed $750.

(d) Selection of arbitrator:

(1) Once the parties have agreed to suitability or suitability has otherwise been determined, the parties shall proceed to select one arbitrator to hear the case. If the parties cannot agree on an arbitrator, they shall make a request in writing to the High Court of American Samoa shall appoint an arbitrator. The parties and court shall endeavor to select the best qualified arbitrator for the issues to be tried, which arbitrator need not be an attorney. The parties may also select an administering agency such as the American Arbitration Association, at the discretion of the parties.

(2) Once selected, the arbitrator and parties shall cooperate to process the arbitration expeditiously and as informally as possible so that the arbitration hearing commences within six months after selection of the arbitrator. The arbitrator shall have the power and authority to sanction any party who does not so cooperate.

(3) The parties shall deposit the estimated fee and expenses of the arbitrator prior to the commencement of the arbitration hearing in equal pro rata amounts.

(e) Award; confirming award; attorney’s fees and costs:

(1) Within seven days after the conclusion of the arbitration hearing, the arbitrator shall serve copies of the award on the parties or their attorneys of record. Awards shall be in writing and signed by the arbitrator. The arbitrator shall determine all issues raised by the pleadings that are subject to arbitration under this chapter, including a determination of comparative fault, if any, damages, if any, and costs. Findings of fact and conclusions of law are not required. After an award is made, the arbitrator shall return all exhibits to the parties who offered them during the hearing.

(2) The award of any costs of arbitration, expenses, and legal fees shall be in the sole discretion of the arbitrator, and the determination of costs, expenses and legal fees shall be binding upon all parties.

(f) Judgment on award. If no party has served a written request for a trial de novo within ten days after the award is served upon all parties, any party may apply under Title 43 to have a judgment entered on the award. Once a judgment is so entered, it shall have the same force and effect as a final judgment, but may not be appealed.

(g) Trial de novo:

(1) The submission of any dispute to arbitration shall in no way limit or abridge the right of any party to a trial de novo.

(2) Written demand for a trial de novo by any party desiring a trial de novo shall be made upon the other parties within ten days after service of the arbitration award upon all parties.

(3) All discovery permitted during the course of the arbitration proceedings shall be admissible in the trial de novo subject to all applicable rules of civil procedure and evidence.

(4) The award of arbitration shall not be made known to the court at a trial de novo, except that the award shall be made available to the court by the clerk of court upon the rendering of judgment by the trier of fact for the purpose of determining whether the party which demanded trial de novo must pay costs, expenses, and fees under paragraph 6.

(5) No arbitration award shall be admitted into evidence in any subsequent trial, nor shall any party to the arbitration, or the counsel or other representative of such party, refer to or comment on the award or any statement or testimony made in the course of the arbitration hearing in an opening statement, an argument, or at any other time, to the court or jury.

(6) In any trial de novo, if the party demanding a trial de novo does not improve its position by thirty per cent or more, the party demanding the trial de novo shall be charged with all reasonable costs, expenses, and attorneys’ fees of the trial. When there is more than one party on one or both sides of an action, or more than one issue in dispute, the court shall allocate its award of costs, expenses, and attorneys’ fees among the prevailing parties and tax such fees against those losing parties who demanded a trial de novo in accordance with the principles of equity.

History: 1999 PL 26-15.