§ 385.605 Arbitration (Rule 605). ( a ) *Authorization of arbitration.* ( 1 ) The participants may at any time submit a written proposal to use binding arbitration under the provisions of Rule 605 to resolve all or part of any matter in controversy, or anticipated to be in controversy, before the Commission.
( 2 ) The proposal must be submitted as provided in Rule 604(d).
( 3 ) The proposal must be in writing and contain the information required in Rule 604(e).
( 4 ) An arbitration proceeding under this rule may be monitored as provided in Rule 604(f).
( 5 ) No person may be required to consent to arbitration as a condition of entering into a contract or obtaining a benefit. All interested parties must expressly consent before arbitration may be used.
( b ) *Arbitrators.* ( 1 ) The participants to an arbitration proceeding are entitled to select the arbitrator.
( 2 ) The arbitrator must be a neutral who meets the criteria of a neutral under Rule 604(c).
( c ) *Authority of arbitrator.* An arbitrator to whom a dispute is referred under this section may: ( 1 ) Regulate the course of and conduct arbitral hearings;
( 2 ) Administer oaths and affirmations;
( 3 ) Compel the attendance of witnesses and the production of evidence to the extent the Commission is authorized by law to do so; and
( 4 ) Make awards.
( d ) *Arbitration proceedings.* ( 1 ) The arbitrator will set a time and place for the hearing on the dispute and must notify the participants not less than 5 days before the hearing.
( 2 ) Any participant wishing that there be a record of the hearing must: ( i ) Prepare the record;
( ii ) Notify the other participants and the arbitrator of the preparation of the record;
( iii ) Furnish copies to all identified participants and the arbitrator; and
( iv ) Pay all costs for the record, unless the participants agree otherwise or the arbitrator determines that the costs should be apportioned.
( 3 ) ( i ) Participants to the arbitration are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing to the same extent as in a proceeding under Subpart E of this part;
( ii ) The arbitrator may, with the consent of the participants, conduct all or part of the hearing by telephone, television, computer, or other electronic means, if each participant has an opportunity to participate.
( iii ) The hearing must be conducted expeditiously and in an informal manner.
( iv ) The arbitrator may receive any oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator.
( v ) The arbitrator will interpret and apply relevant statutory and regulatory requirements, legal precedents, and policy directives.
( 4 ) No interested person will make or knowingly cause to be made to the arbitrator an unauthorized *ex parte* communication relevant to the merits of the proceeding, unless the participants agree otherwise. If a communication is made in violation of this prohibition, the arbitrator will ensure that a memorandum of the communication is prepared and made a part of the record, and that an opportunity for rebuttal is allowed. Upon receipt of such communication, the arbitrator may require the offending participant to show cause why the claim of the participant should not be resolved against the participant as a result of the improper conduct.
( 5 ) The arbitrator will make the award within 30 days after the close of the hearing or the date of the filing of any briefs authorized by the arbitrator, whichever date is later, unless the participants and the arbitrator agree to some other time limit.
( e ) *Arbitration awards.* ( 1 ) ( i ) The award in an arbitration proceeding under Subpart F of this chapter will include a brief, informal discussion of the factual and legal basis for the award.
( ii ) The prevailing participants must file the award with the Commission, along with proof of service on all participants.
( 2 ) The award in an arbitration proceeding will become final 30 days after it is served on all parties.
( 3 ) A final award is binding on the participants to the arbitration proceeding.
( 4 ) An award may not serve as an estoppel in any other proceeding for any issue that was resolved in the proceeding. The award also may not be used as precedent or otherwise be considered in any factually unrelated proceeding or in any other arbitration proceeding.
[Order 578, 60 FR 19507, Apr. 19, 1995, as amended by Order 602, 64 FR 17099, Apr. 8, 1999]