Arizona Independent Scheduling Administrator Association


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Alternative Dispute Resolution (ADR)



The following is an excerpt from the Az ISA Bylaws of October 2001 explaining the
Alternative Dispute Resolution procedures.


6.          Dispute Resolution:

There shall be two separate alternative dispute resolution (ADR) proceduresó(i) a fast-track arbitration procedure to resolve near-term issues and (ii) a more typical mediation and/or arbitration procedure to resolve disputes that are more complex.

6.1.            Fast-Track ADR:

The Director or the Assistant Director shall make immediate decisions, based on the Protocols Manual with respect to irregularities discovered during the performance of the duties described in Section 5.3.10 and with respect to disputes between transmission providers and transmission users concerning the next-day/same-day schedule when such disputes involve a determination of TTC, ATC, committed uses, priorities for use of congested paths, or other similar disputes. If the decision of the Director or Assistant Director is disputed, the decision will be referred to the fast-track ADR process by the Director or Assistant Director. A panel of three (3) arbitrators shall be available at the call of the Director or Assistant Director for a decision on the next business day--one panel member and an alternate from the transmitting utility and one and an alternate from the transmission user involved in the dispute, all of whom shall have been designated at the time they become Members. The third member shall be selected by the Director or Assistant Director on a rotating basis from an independent standing panel of transmission experts, all of whom shall meet the disqualification criteria contained in Section 5.1.1. The fast-track ADR panelís decision shall be submitted by the independent arbitrator, along with a statement for his/her fee and costs to be paid by the losing Party, to the Director by facsimile or electronic mail and the decision shall stand pending an appeal, which must be taken, if at all, within thirty (30) days after the date of the decision either to the courts or FERC, whichever is appropriate. A final decision of the panel, the court, or FERC shall establish a precedent to guide future decisions of the Director, Assistant Director, and future fast-track panels; provided, however, that all appeals to FERC or the courts shall be de novo.

6.2.            Alternative Dispute Resolution Procedures:

For more complicated disputes among transmission providers and transmission users requiring additional time to prepare legal positions and proof of facts or use of witnesses and documentary evidence, the Parties to the dispute may initiate the peer review or mediation process provided in Section 6.2.1 or the Director shall cause the arbitration procedures provided in Section 6.2.2 to be initiated, unless both Parties choose to take the dispute directly to FERC or the courts, whichever is appropriate.

6.2.1.      Peer Review or Mediation:

6.2.1.1.                        All disputing Parties may jointly submit a written request for peer review or mediation, including a written description of the matter under dispute, to the AISA.

6.2.1.2.                        Within two (2) working days of the receipt of the request, the Director or Assistant Director shall appoint one (1) or more persons selected from the list maintained by SWRTA to act as facilitators to provide peer review or mediation.

6.2.1.3.                        Generally, a mediation process will be followed for disputes regarding non-fast-track ADR. The Director or Assistant Director shall appoint one or more facilitators from SWRTAís list of qualified individuals who have received mediation training, or, if mutually requested by the disputing Parties, any professional mediator, to facilitate a resolution of the issue by the disputing Parties.

6.2.1.4.                        The facilitator(s) appointed pursuant to Section 6.2.1.2 hereof shall serve on an ad hoc basis to aid the disputing Parties in reaching a mutually acceptable resolution of the dispute. The facilitator(s) shall have no authority to impose a resolution upon the disputing Parties.

6.2.1.5.                        Within ten (10) working days of the appointment by the AISA, the facilitator(s) and disputing Parties shall meet and attempt to negotiate a resolution of the dispute, following a timetable set out by the facilitator. The cost of the peer review or mediation, including the facilitatorís reasonable fees and expenses, shall be borne equally by the disputing Parties.

6.2.1.6.                       Settlement positions taken by the disputing Parties during the course of the negotiations under this Section 6.2.1 shall be maintained as confidential to the extent permitted by law and shall not be introduced as evidence by an opposing Party in any subsequent arbitration, FERC proceeding, or litigation concerning the same or a related dispute.

6.2.1.7.                        If all issues involved in the dispute are not resolved pursuant to this Section 6.2.1 within thirty (30) calendar days, or other mutually agreed-to period, after appointment of the facilitator, then any unresolved issues shall be resolved as follows: (i) at the direction of the Director, the disputing Parties will follow the arbitration process set forth in Section 6.2.2; or (ii) the complaining Party shall file the dispute with FERC under the FPA for resolution.

6.2.1.8.                        The facilitator shall report the outcome of the peer review or mediation process to the Director upon the successful conclusion of the mediation process or at the end of the thirty-day period, whichever event shall first occur.

6.2.1.9.                        The facilitator shall bill and each Party shall pay one-half of the facilitatorís fees and costs.

6.2.2.      Arbitration:

6.2.2.1  Within two (2) business days after the dispute has been referred to arbitration by the Director pursuant to Section 6.2, each disputing Party shall submit a statement in writing to the other disputing Party and the Director, which statement shall set forth in adequate detail the nature of the dispute, the issues to be arbitrated, and the remedy sought through such arbitration proceedings.

6.2.2.2  The day following the submission of their statements, authorized representatives of the disputing Parties shall meet in person or by telephone for the purpose of selecting an Arbitrator.

6.2.2.3  Arbitration shall be conducted by a qualified Arbitrator selected from the list maintained by SWRTA or from a mutually agreed list. If the disputing Parties cannot agree upon an Arbitrator, each disputing Party shall take turns striking names from a list of ten (10) qualified and available individuals, with one of the disputing Parties, chosen by lot, first striking a name. The last-remaining name not stricken shall be designated as the Arbitrator. If that individual is unable, unwilling or ineligible to serve, the individual last stricken from the list shall be designated and the process repeated until an individual is selected who is eligible and willing to serve. No person shall be eligible for appointment as an Arbitrator who meets the disqualification criteria established in Section 5.1.1, and any individual designated as a potential Arbitrator who is ineligible to serve pursuant to those criteria shall disclose the circumstances affecting his or her impartiality and shall disqualify himself or herself from serving as Arbitrator.

6.2.2.4  The Arbitrator shall establish a fourteen-day procedural schedule, beginning two (2) business days after his/her appointment. This schedule shall establish procedures for discovery and intervention, how evidence shall be taken, what written submittals may be made, and other such procedural matters, including setting the date, time and place of the hearing, taking into account the complexity of the issues involved, the extent to which factual matters are disputed and the extent to which the credibility of witnesses is relevant to a resolution of the issues. Such procedures shall ensure, to the extent the fourteen-day schedule permits, time for  (i) reasonable discovery of the facts, (ii) taking testimony under oath, (iii) transcribing testimony, (iv) maintaining a docket that identifies each document received, and (v) maintaining a file of the documents.

6.2.2.5  The Arbitrator shall accept relevant and material evidence and hear testimony presented by the disputing Parties and may request additional information and testimony. Such additional information shall be furnished by the Party or Parties and may be requested from other entities having such information. Other interested entities may move to intervene and request in writing that the Arbitrator consider additional information, and the Arbitrator shall decide, in view of the fourteen-day schedule for reaching his decisions, whether to permit such intervention and whether to consider such additional information.

6.2.2.6  Each disputing Party shall submit its proposed remedy to the Arbitrator immediately after both Parties have rested at the hearing. Within and as a part of the fourteen-day procedural schedule, the Arbitrator shall determine which proposal best meets the terms and intent of AISAís Bylaws, the Protocols Manual, and conforms with the FPA and FERCís published decisions, policies, and regulations, and shall state his or her decision in writing. If the Arbitrator finds both proposed remedies to be inadequate, the Arbitrator may call for new proposals from the disputing Parties, if time permits. If time does not permit second proposals, the arbitrator shall terminate the proceeding and leave the Parties to their remedies at law. The Arbitratorís decision shall stand pending an appeal, which must be taken, if at all, within, thirty (30) days after the date of the decision either to the courts or FERC, whichever is appropriate. All appeals to FERC or the courts shall be de novo.

6.2.2.7  Immediately upon their receipt of the written decision of the Arbitrator, the disputing Parties shall take whatever action is required to comply with the decision. To the extent the decision requires local, state, or federal approval, regulatory action, or a FERC filing by a Party, the affected Party(ies) shall submit and fully support that portion of the decision before the appropriate regulatory authority, if such regulatory authority has jurisdiction over that Party. Each disputing Party shall bear its own attorneysí fees and costs associated with the arbitration. The Arbitratorís fees and expenses and other costs of proof incurred at the request of the Arbitrator shall be borne by the losing Party(ies). In the event of termination of the proceeding by the Arbitrator pursuant to Section 6.2.2.6, the Parties shall share the Arbitratorís fees and expenses equally.

6.2.3.      Review:

6.2.3.1  Any arbitration decision issued pursuant to the AISA Tariff that affects matters subject to the jurisdiction of FERC under the Federal Power Act shall be filed with FERC.

6.2.3.2  On the basis of a protest by an affected state agency or on FERCís own motion, FERC may investigate any arbitration decision made under the AISA Bylaws with respect to matters within its jurisdiction, and after giving substantial deference to such decision, may set it aside if the decision is determined to be inconsistent with the basis upon which the Bylaws were approved by FERC or with applicable federal law or regulation.

6.3.            Disputes Involving Government Agencies:

If a party to a dispute is a Federal agency, the procedures herein which provide for the resolution of claims and arbitration of disputes are subject to any limitations imposed on the agency by law, including but not limited to the authority of the agency to effect a remedy. With respect to such Federal Agencies, the procedures in this Section 6 shall not apply to disputes involving issues arising under the United States Constitution.

 

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Last Update:  June 10, 2013

 

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