NASD`s Code of Arbitration Procedure requires respondents in NASD arbitration proceedings to comply with a consistent response and agreement (U.S.) when responding to the request. NASD has learned that some members and associates, cited as respondents in arbitration proceedings, neglect or refuse to sign a U.S. signature in time. If the United States is not signed and filed, this can cause confusion, lead to ancillary litigation and undermine the opposability of arbitration awards. The purpose of this communication is to remind members and associates who are respondents that filing a Member State is mandatory in the absence of a particular judicial challenge and that non-compliance may result in sanctions or disciplinary action. NASD staff have learned that some members and associates, cited as respondents, are neglecting or refusing to sign the United States. While these members and associates may believe that the U.S. signature is not necessary, since they are in any event required to submit to arbitration under the code, the non-signature of the United States may create unnecessary confusion or even incidental litigation on the part of the opposing party and jeopardize the eventual award of arbitration. For example, Section 13 of the Federal Arbitration Act (FAA) requires that an application for confirmation of an arbitration award contain the parties` arbitration agreement. While an applicant can prove that a member who did not export to the United States was nevertheless required to mediate in accordance with the NASD rules, U.S.
non-enforcement may unnecessarily impede a complainant`s ability to seek confirmation of an arbitration award pursuant to FAA Section 13. Arbitration Sanctions Uniformes Agreements NASD hopes that these measures will serve as an effective reminder to members and associates who are considered respondents in NASD arbitration proceedings, that they will have to file the USAs in a timely manner, as required by the code, and that they will have to mitigate the need to amend future rules or other additional measures to resolve the issue. The purpose of this communication is to remind members and associates, who are cited as respondents in NASD arbitration proceedings, that a U.S. application is mandatory. In the absence of a concrete and colourful objection that the respondent is not subject to arbitration proceedings in accordance with Rules 10101, 10201 or 10301 of the Code, a respondent`s failure to file a complaint in a timely manner in the United States may result in sanctions by the Court of Arbitration and, in certain circumstances, be considered a violation of a fair and equitable business principle and the NASD 2110 rule. In addition to the publication of this notice, NASD Dispute Resolution will initiate a practice to inform all parties of the U.S. status prior to the first preliminary hearing conference (IPHC) so that each party will know whether each other party has properly executed the United States prior to the start of the IPHC.