[Federal Register Volume 62, Number 157 (Thursday, August 14, 1997)]
[Notices]
[Pages 43568-43571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21445]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-38907; File No. SR-NASD-97-34]


Order of Granting Approval; Notice of Filing and Order Granting 
Accelerated Approval

August 6, 1997.
    Self-Regulatory Organizations; National Association of 
Securities Dealers, Inc.; Order Granting Approval to Proposed Rule 
Change and Notice of Filing and Order Granting Accelerated Approval 
of Amendment Nos. 3 and 4 to Proposed Rule Change Relating to 
Miscellaneous Amendments to Arbitration Procedures and 
Clarifications of the Code of Arbitration Procedure.

I. Introduction

    On May 5, 1997,\1\ the National Association of Securities Dealers, 
Inc. (``NASD'' or ``Association'') submitted to the Securities and 
Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of 
the Securities Exchange Act of 1934 (``Act'') \2\ and Rule 19b-4 
thereunder,\3\ a proposed rule change to amend and clarify its 
arbitration procedures.
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    \1\ The NASD filed Amendment Nos. 1 and 2 with the Commission on 
May 13, 1997, and May 22, 1997, respectively, the substance of which 
was incorporated into the notice. See letters from Elliott R. 
Curzon, Assistant General Counsel, NASDR, to Katherine A. England, 
Assistant Director, Market Regulation, Commission, dated May 8, 1997 
(``Amendment No. 1'') and May 20, 1997 (``Amendment No. 2).
    \2\ 15 U.S.C. 78s(b)(1).
    \3\ 17 CFR 240.19b-4.
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    Notice of the proposed rule change, together with the substance of 
the proposal, was published for comment in Securities Exchange Act 
Release No. 38692 (May 29, 1997), 62 FR 30920 (June 5, 1997). No 
comments were received on the proposal. The NASD subsequently filed 
Amendment Nos. 3 and 4 on July 15, 1997 \4\ and July 25, 1997, 
respectively.\5\
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    \4\ Amendment No. 3 amends Rule 10330 to state that the Director 
will serve a copy of the award by using any method available and 
convenient to the parties and the Director, and that is reasonably 
expected to cause the award to be delivered to all parties, or their 
counsel, on the same day. Methods available include, but are not 
limited to, registered or certified mail, hand delivery, and 
facsimile or other electronic means. Amendment No. 3 also amends the 
purpose section of the proposed rule change to state that it is 
important to permit service by means other than registered mail or 
personal service, because the Office is frequently asked to provide 
arbitration awards by facsimile, and could be asked to provide 
service by other alternative means. In addition, Amendment No. 3 
states that it is important that all parties be served with 
arbitration awards at approximately the same time so that there is 
no confusion about when the time to seek review of an award begins 
to run, and parties all have approximately the same amount of time 
to prepare for and seek review of an award. Also, Amendment No. 3 
states that parties should not be required to accept service of 
awards through means that are inconvenient or unavailable to them, 
nor should the Office be required to serve an award in a manner that 
is not readily available. See letter from Elliott R. Curzon, 
Assistant General Counsel, NASD Regulation, to Katherine A. England, 
Assistant Director, Market Regulation, Commission, dated July 14, 
1997 (``Amendment No. 3'').
    \5\ Amendment No. 4 states that NASDR's Office of Dispute 
Resolution intends to modify its case tracking system to add a 
status code that will show when a claim, defense, or proceeding has 
been dismissed with prejudice and whether the dismissal was a 
sanction for failing to comply with an order. In order to allow for 
sufficient time to implement this change to the system, NASDR will 
make the proposed rule changes in this rule filing effective within 
forty-five days following Commission approval. See letter from 
Elliott Curzon, Assistant General Counsel, to Katherine A. England, 
Assistant Director, Market Regulation, Commission, dated July 23, 
1997 (``Amendment No. 4'').

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[[Page 43569]]

II. Description

    NASD Regulation, Inc. (``NASDR'') is proposing to amend the Code of 
Arbitration Procedure (``Code'') to make certain minor procedural 
changes designed to enhance the arbitration process.\6\ Specifically, 
NASDR is proposing to amend: (1) Rule 10305 (formerly Section 16), to 
permit arbitrators to dismiss claims with and without prejudice; (2) 
Rule 10310 (formerly Section 21), to extend the time periods for notice 
of selection of arbitrators and further inquiries concerning an 
arbitrator; (3) Rule 10311 (formerly Section 22), to permit the 
Director of Arbitration to grant additional peremptory challenges of 
arbitrators; (4) Rule 10313 (formerly Section 24), to extend the time 
in which a party can exercise its right to challenge a replacement 
arbitrator; and (5) Rule 10330 (formerly Section 41), to permit awards 
to be served by means other than registered mail or personal 
service.\7\
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    \6\ While NASDR does not believe that the changes proposed in 
this filing will conflict with amendments to the Code to be proposed 
in response to the recommendations of the NASD's Arbitration Policy 
Task Force, some of the changes proposed herein will ultimately be 
replaced or superseded by those amendments and are, therefore, 
temporary in nature. For example, the proposed change to the 
peremptory challenge provision discussed below will be superseded 
when the Association's list selection rule is filed with and 
approved by the Commission. Nevertheless, NASDR believes that the 
rule changes in this proposed rule filing are important enough to be 
made now even if some of them will eventually be superseded.
    \7\ See Amendment No. 3, supra note 4.
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    NASDR is proposing to amend Rule 10305 of the Code (formerly 
Section 16), which relates to dismissal of arbitration proceedings, to 
clarify that the arbitrators may dismiss a proceeding without prejudice 
to the claims or defenses of the parties and refer the parties to their 
judicial remedies and, in addition, to any other dispute resolution 
forum agreed to by the parties. The Code does not specify the grounds 
for dismissals without prejudice; however, such dismissals would 
generally occur only when appropriate and in the interest of justice, 
such as where the parties have agreed to the dismissal (especially if 
they have agreed to proceed in another forum), or where an 
indispensable party cannot be jointed in the arbitration.
    NASDR is also proposing to amend Rule 10305 by adding a new 
subsection (b) granting arbitrators the express authority to dismiss a 
claim, defense, or proceeding with prejudice as a sanction for willful 
and intentional material failure to comply with an order of the 
arbitrator(s), but only if lesser sanctions have proven ineffective.\8\ 
This provision is intended to establish clearly that arbitrators have 
the power to issue orders in aid of the arbitration process and to 
enforce those orders by use of the ultimate sanction of dismissal with 
prejudice. Such a sanction would be used, for example, where a party 
refused to produce documents necessary for another party's claim or 
defense. In such instances, after the arbitrators have imposed lesser 
sanctions that have not induced compliance with the order, the 
arbitrators may dismiss a claim, defense, or the entire arbitration 
proceeding, with prejudice.\9\
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    \8\ While the NASD believes that arbitrators currently have 
plenary power to issue such dismissal orders, this power is rarely 
exercised because it is not expressly provided for in the Code and 
arbitrators appear to be reluctant to wield such sanctioning power 
without express authority.
    \9\ The Commission notes that NASDR has stated its intention to 
modify its case tracking system in order to show when a claim, 
defense, or proceeding has been dismissed with prejudice, and 
whether the dismissal was a sanction for failing to comply with an 
order of the arbitrators. See Amendment No. 4, supra note 5.
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    NASDR is proposing to amend Rules 10310, 10311, and 10313 of the 
Code (formerly Sections 21, 22, and 23), which relate to arbitrator 
selection, peremptory challenges and arbitrator disclosures, to extend 
the time limitations on a party to (1) seek additional information 
under Rules 10310 and 10313 about replacement arbitrators, and (2) 
exercise a peremptory challenge under Rule 10311, from 5 days to 10 
business days after notification of the identity of the person(s) 
proposed as arbitrators.\10\ In addition, Rule 10310 is proposed to be 
amended to extend the Arbitration Department's obligation to provide 
the parties with the names and histories of the arbitrators from 8 to 
15 days prior to the date of the first hearing. The proposed rule 
change further amends Rule 10310 to replace ``the Director of 
Arbitration'' with ``the Director'' whenever it occurs.
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    \10\ Although the notice prepared by the NASD stated in the 
purpose section describing the proposed rule change that the time 
limitation to exercise a peremptory challenge under Rule 10311 was 
extended from 5 to 10 days prior to the hearing, the actual language 
of the rule under the proposed rule change states that the time 
limitation to exercise a peremptory challenge is 10 business days, 
``of notification of the identity of the person(s) named under Rule 
10310 or Rule 10321 (d) or (e), whichever comes first.''
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    NASDR is also proposing to amend Rule 10311 to permit the Director 
to grant additional peremptory challenges under certain circumstances. 
Currently, the rule permits the Director to grant additional peremptory 
challenges in multi-party cases when the Director, ``in the interests 
of justice,'' determines that additional peremptory challenges are 
warranted by the circumstances of the case. For example, on occasion a 
party will discover grounds for a cause challenge to one arbitrator 
after the party has used its peremptory challenge against that 
arbitrator. In such an instance, the party may argue that it would have 
used its peremptory challenge differently had it known of the 
information. Under the current rule, if that circumstance arose in a 
multi-party case, the Director may, ``in the interests of justice,'' 
grant additional challenges. NASDR believes that similar circumstances 
may arise in single-party cases and, therefore, is seeking to amend the 
rule to permit the Director to grant such additional challenges.
    NASDR is also proposing to amend Rule 10330 of the Code (formerly 
Section 41) to permit the Office of Dispute Resolution to serve 
arbitration awards by means other than registered mail or personal 
service.\11\ The Office frequently is asked to provide arbitration 
awards to parties by facsimile. Because the Code does not provide for 
this method of service, the Office serves the award by facsimile and 
also duplicate service by one of the other methods specified in the 
Code. In addition, the Office may be asked to provide arbitration 
awards by methods other than registered, facsimile, or personal 
service.\12\ By amending the Code to permit facsimile service, the 
Office will not be required to serve duplicates by another approved 
method.
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    \11\ See Amendment No. 3, supra note 4.
    \12\ See Amendment No. 3, supra note 4.
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    Also, it is important that all parties be served with arbitration 
awards at approximately the same time so that there is no confusion 
about when the time to seek review of an award begins to run, and 
parties all have approximately the same amount of time to prepare for 
and seek review of an award. Finally, parties should not be required to 
accept service of awards through means that are inconvenient or 
unavailable to them; nor should the Office be required to serve an 
award in a manner that is not readily available. Thus, if Party A does 
not have access to a facsimile machine, the Office may serve other 
parties by facsimile as long as the Office serves the award on Party A 
in a manner that is reasonably expected to secure delivery to Party A 
on the same day.\13\
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    \13\ See Amendment No. 3, supra note 4.
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    The proposed rule change also amends references to numbers, such as 
``eight (8)'' or ``fifteen (15)'', throughout the proposed rule change 
to delete the

[[Page 43570]]

word form and retain the Arabic numeral.

III. Discussion

    The Commission believes that the proposed rule change is consistent 
with the provisions of Section 15A(b)(6) of the Act \14\ in that 
clarifying procedures, eliminating ambiguities, and adjusting 
procedures to accommodate changing practices are consistent with the 
NASD's goal of providing the investing public with a fair, efficient, 
and cost-effective forum for the resolution of disputes.\15\
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    \14\ 15 U.S.C. 78o-3.
    \15\ In approving this rule, the Commission notes that it has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. 15 U.S.C. 78c(f).
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    The Commission believes that the portion of the proposed rule 
change to Rule 10305, relating to dismissal of arbitration proceedings 
with and without prejudice, is consistent with the Act. This portion of 
the proposed rule change will provide for a fair, efficient and cost-
effective arbitration process by clarifying that the arbitrators can 
dismiss the proceeding either with or without prejudice; currently, 
Rule 10305 does not distinguish between these two choices. Also, the 
proposed rule change amends Rule 10305 to add that the arbitrators, 
when dismissing without prejudice, can refer the parties to any dispute 
resolution forum agreed to by the parties, in addition to their 
judicial remedies. The Commission notes that the NASD stated in the 
notice that such dismissals without prejudice would generally occur 
only where appropriate and in the interest of justice, such as where 
the parties have agreed to the dismissal (especially if they have 
agreed to proceed in another forum), or where an indispensable party 
cannot be joined in the arbitration.
    The Commission notes that the proposed change to Rule 10305 
allowing for dismissal with prejudice is intended to establish clearly 
that arbitrators have the power to issue orders in aid of the 
arbitration process and to enforce those orders by use of the sanction 
of dismissal with prejudice. Such a sanction would be used, for 
example, where a party refused to produce documents that the 
arbitrators already have ordered them to produce as necessary for 
another party's claim or defense. In such instances, after the 
arbitrators have imposed lesser sanctions that have not induced 
compliance with their order, the arbitrators may dismiss a claim, 
defense, or the entire arbitration proceeding, with prejudice. The 
Commission believes that this proposed rule change would provide for a 
more efficient arbitration process because it will allow the 
arbitrators to assert greater control over the proceedings and will 
provide parties with clear notice of the possible consequences of non-
compliance with an order of the arbitrators. It also would help to 
protect all parties to an arbitration, and ensure that one party to the 
proceeding does not take advantage of the other.\16\
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    \16\ As previously noted, NASDR has stated its intention to 
modify its case tracking system in order to show when a claim, 
defense, or proceeding has been dismissed with prejudice, and 
whether the dismissal was a sanction for failing to comply with an 
order of the arbitrators. See supra note 9 and Amendment No. 4, 
supra note 5.
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    The Commission believes that the proposed changes to Rules 10310, 
10311, and 10313 providing for an extension of time limitations 
relating to arbitrator selection, peremptory challenges, and arbitrator 
disclosures are consistent with the Act because they allow the parties 
more time to gather information to prepare for the arbitration 
proceedings.\17\
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    \17\ The proposed changes extend the time limitations on a party 
to (1) seek additional information under Rules 10310 and 10313 about 
replacement arbitrators, and (2) exercise a peremptory challenge 
under Rule 10311, from 5 days to 10 business days after notification 
of the identity of the person(s) proposed as arbitrators. In 
addition, Rule 10310 is proposed to be amended to change the Office 
of Dispute Resolution's obligation to provide the parties with the 
names and histories of the arbitrators from 8 to 15 days before the 
date of the first hearing.
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    The Commission believes that the proposed change to Section 10311 
that allows the Director of Arbitration to grant additional peremptory 
challenges in certain circumstances is reasonable under the Act. This 
proposed rule change allows the Director to grant additional peremptory 
challenges where there is a single claimant or respondent, in 
appropriate circumstances, which the Director may already do in cases 
where there are multiple claimants or respondents. For example, the 
NASDR noted in its filing that on occasion a party will discover 
grounds for a cause challenge to one arbitrator after the party has 
used its peremptory challenge against the arbitrator. In such an 
instance, the party may argue that it would have used its peremptory 
challenge differently had it known of the information. Under the 
current rule if that circumstance arose in a multi-party case, the 
Director may, ``in the interests of justice,'' grant additional 
challenges. The proposed rule change provides clearly that the Director 
may grant additional challenges in a case with a single claimant or 
respondent.
    The Commission finds good cause to approve Amendment Nos. 3 and 4 
to the proposed rule change prior to the thirtieth day after the date 
of publication of notice of filing thereof in the Federal Register. The 
Commission believes that the proposed change to Rule 10330, including 
Amendment No. 3, that allows for service by means other than registered 
mail or personal service, such as facsimile or other electronic 
transmission, is reasonable under the Act because it will help to 
provide for more efficient service.\18\ The NASD has stated that its 
Office frequently is asked to provide arbitration awards to parties by 
facsimile, but because the Code does not provide for this method of 
service, the Office provides the award by facsimile but it also 
duplicates service by one of the other methods specified in the Code. 
By amending the Code to permit alternative means of service, the Office 
will not be required to duplicate service by another approved method. 
The Commission notes that the proposed rule change provides adequate 
safeguards to allow for all parties to receive notice of the awards in 
a way that is reasonably expected to provide notice on the same day, 
for purposes of time limitations on post-award motions. Also, the NASD 
states that the Office will not serve awards on parties in a way that 
is inconvenient or unavailable to the party, and the Office will not be 
required to serve an award in a manner that is not readily 
available.\19\
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    \18\ Amendment No. 3 amends Rule 10330 to allow for service of 
awards by alternative means while still providing for service in a 
manner reasonably expected to ensure notice to all the parties on 
the same day, and in a manner that is not inconvenient or 
unavailable to them. Amendment No. 3 is designed to avoid confusion 
as to when the time to seek review of an award begins to run and to 
provide all parties approximately the same amount of time to prepare 
for and seek review of an award. In addition, by allowing for 
alternative means of service, such as by facsimile, the Office will 
not be required to make duplicative service, as they do now when 
they are asked to serve an award by facsimile or other means not 
allowed in the current rule.
    \19\ See Amendment No. 3, supra note 4. In addition, the 
proposed rule change also amends references to numbers, such as 
``eight (8)'' or ``fifteen (15)'', throughout the proposed rule 
change to delete the word form and retain the Arabic numeral. 
Finally, the proposed rule change amends Rule 10310 to replace ``the 
Director of Arbitration'' with ``the Director'' whenever it occurs.
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    Amendment No. 4, which states that the NASDR intends to modify its 
case tracking system to show when claims, defenses, or proceedings are 
dismissed with prejudice and whether the dismissal was a sanction for 
failing to comply with an order of the arbitrators, is consistent with 
the Act because it will help to protect investors and the public by 
monitoring when arbitrators use the sanction of dismissal with 
prejudice. Finally, the Commission notes that the

[[Page 43571]]

proposed rule change was noticed for the full comment period and no 
comment letters were received. Accordingly, the Commission believes 
that it is consistent with Section 15A(b)(6) of the Act to approve 
Amendment No. 3 to the proposal on an accelerated basis.
    Interested persons are invited to submit written data, views, and 
arguments concerning Amendment Nos. 3 and 4 to the rule proposal. 
Persons making written submissions should file six copies thereof with 
the Secretary, Securities and Exchange Commission, 450 Fifth Street, 
NW., Washington, DC 20549. Copies of the submission, all subsequent 
amendments, all written statements with respect to the proposed rule 
change that are filed with the Commission, and all written 
communications relating to the proposed rule change between the 
Commission and any person, other than those that may be withheld from 
the public in accordance with the provisions of 5 U.S.C. 552, will be 
available for inspection and copying at the Commission's Public 
Reference Room. Copies of such filing also will be available for 
inspection and copying at the principal office of the NASD. All 
submissions should refer to File No. SR-NASD-97-34 and should be 
submitted by September 4, 1997.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\20\ that the proposed rule change (SR-NASD-97-34), as amended, is 
approved.

    \20\ 15 U.S.C. 78s(b)(2).
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    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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Jonathan G. Katz,
Secretary.
[FR Doc. 97-21445 Filed 8-13-97; 8:45 am]
BILLING CODE 8010-01-M