093_HB3211

 
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 1        AN ACT concerning arbitration.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 0.01.  Short title.  This Act may be cited as the
 5    Uniform Arbitration Act (2000).

 6        Section 1.  Definitions.  In this Act:
 7        (1)  "Arbitration  organization"  means  an  association,
 8    agency, board, commission, or other entity  that  is  neutral
 9    and   initiates,  sponsors,  or  administers  an  arbitration
10    proceeding  or  is  involved  in  the   appointment   of   an
11    arbitrator.
12        (2)  "Arbitrator" means an individual appointed to render
13    an  award,  alone  or  with  others, in a controversy that is
14    subject to an agreement to arbitrate.
15        (3)  "Court" means a circuit court of this State.
16        (4)  "Knowledge" means actual knowledge.
17        (5)  "Person" means an individual, corporation,  business
18    trust, estate, trust, partnership, limited liability company,
19    association,    joint   venture,   government;   governmental
20    subdivision, agency, or instrumentality; public  corporation;
21    or any other legal or commercial entity.
22        (6)  "Record"  means  information  that is inscribed on a
23    tangible medium or that is stored in an electronic  or  other
24    medium and is retrievable in perceivable form.

25        Section 2.  Notice.
26        (a)  Except  as  otherwise provided in this Act, a person
27    gives notice to another  person  by  taking  action  that  is
28    reasonably  necessary  to inform the other person in ordinary
29    course, whether or not the other person acquires knowledge of
30    the notice.
 
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 1        (b)  A person has notice if the person has  knowledge  of
 2    the notice or has received notice.
 3        (c)  A  person  receives  notice  when  it  comes  to the
 4    person's attention or the notice is delivered at the person's
 5    place of residence  or  place  of  business,  or  at  another
 6    location  held  out  by  the person as a place of delivery of
 7    such communications.

 8        Section 3.  When Act applies.
 9        (a)  This Act governs an agreement to arbitrate  made  on
10    or after the effective date of this Act.
11        (b)  This  Act  governs  an  agreement  to arbitrate made
12    before the effective date of this Act if all the  parties  to
13    the  agreement or to the arbitration proceeding so agree in a
14    record.
15        (c)  On or after  July  1,  2004,  this  Act  governs  an
16    agreement to arbitrate whenever made.

17        Section 4.  Effect of agreement to arbitrate; nonwaivable
18    provisions.
19        (a)  Except as otherwise provided in subsections (b)  and
20    (c),   a  party  to  an  agreement  to  arbitrate  or  to  an
21    arbitration proceeding may waive or, the parties may vary the
22    effect of,  the  requirements  of  this  Act  to  the  extent
23    permitted by law.
24        (b)  Before  a  controversy  arises that is subject to an
25    agreement to arbitrate, a party to the agreement may not:
26             (1)  waive or  agree  to  vary  the  effect  of  the
27        requirements  of Section 5(a), 6(a), 8, 17(a), 17(b), 26,
28        or 28;
29             (2)  agree to unreasonably restrict the right  under
30        Section  9  to notice of the initiation of an arbitration
31        proceeding;
32             (3)  agree to unreasonably restrict the right  under
 
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 1        Section  12  to  disclosure  of  any  facts  by a neutral
 2        arbitrator; or
 3             (4)  waive the right under Section 16 of a party  to
 4        an  agreement  to arbitrate to be represented by a lawyer
 5        at any proceeding or  hearing  under  this  Act,  but  an
 6        employer  and a labor organization may waive the right to
 7        representation by a lawyer in a labor arbitration.
 8        (c)  A party to an agreement to arbitrate or  arbitration
 9    proceeding  may  not  waive,  or the parties may not vary the
10    effect of, the requirements of this section or  Section  3(a)
11    or  (c),  7, 14, 18, 20(d) or (e), 22, 23, 24, 25(a)  or (b),
12    29, 30, 31, or 32.

13        Section 5.  Application for judicial relief.
14        (a)  Except as  otherwise  provided  in  Section  28,  an
15    application  for  judicial relief under this Act must be made
16    by motion to the court and heard in the  manner  provided  by
17    law or rule of court for making and hearing motions.
18        (b)  Unless  a  civil  action  involving the agreement to
19    arbitrate is pending, notice of  an  initial  motion  to  the
20    court under this Act must be served in the manner provided by
21    law  for  the  service  of  a  summons  in  a  civil  action.
22    Otherwise,  notice  of the motion must be given in the manner
23    provided by law or rule  of  court  for  serving  motions  in
24    pending cases.

25        Section 6.  Validity of agreement to arbitrate.
26        (a)  An  agreement  contained  in  a  record to submit to
27    arbitration any existing or  subsequent  controversy  arising
28    between  the  parties to the agreement is valid, enforceable,
29    and irrevocable except upon a ground that exists at law or in
30    equity for the revocation of a contract.
31        (b)  The court  shall  decide  whether  an  agreement  to
32    arbitrate  exists or a controversy is subject to an agreement
 
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 1    to arbitrate.
 2        (c)  An  arbitrator  shall  decide  whether  a  condition
 3    precedent to arbitrability has been fulfilled and  whether  a
 4    contract   containing  a  valid  agreement  to  arbitrate  is
 5    enforceable.
 6        (d)  If a party to a judicial proceeding  challenges  the
 7    existence of, or claims that a controversy is not subject to,
 8    an  agreement  to  arbitrate,  the arbitration proceeding may
 9    continue pending final resolution of the issue by the  court,
10    unless the court otherwise orders.

11        Section 7.  Motion to compel or stay arbitration.
12        (a)  On  motion  of  a  person  showing  an  agreement to
13    arbitrate and alleging another person's refusal to  arbitrate
14    pursuant to the agreement:
15             (1)  if  the  refusing party does not appear or does
16        not oppose the motion, the court shall order the  parties
17        to arbitrate; and
18             (2)  if  the  refusing party opposes the motion, the
19        court shall proceed summarily to  decide  the  issue  and
20        order the parties to arbitrate unless it finds that there
21        is no enforceable agreement to arbitrate.
22        (b)  On  motion  of a person alleging that an arbitration
23    proceeding has been initiated or threatened but that there is
24    no agreement to arbitrate, the court shall proceed  summarily
25    to  decide  the  issue.  If  the court finds that there is an
26    enforceable  agreement  to  arbitrate,  it  shall  order  the
27    parties to arbitrate.
28        (c)  If the court finds  that  there  is  no  enforceable
29    agreement,   it   may  not  pursuant  to  subsection  (a)  or
30    (b)  order the parties to arbitrate.
31        (d)  The  court  may  not  refuse  to  order  arbitration
32    because the claim  subject  to  arbitration  lacks  merit  or
33    grounds for the claim have not been established.
 
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 1        (e)  If  a  proceeding  involving  a  claim  referable to
 2    arbitration  under  an  alleged  agreement  to  arbitrate  is
 3    pending in court, a motion under this section must be made in
 4    that court. Otherwise a motion under this section may be made
 5    in any court as provided in Section 27.
 6        (f)  If a party makes a motion  to  the  court  to  order
 7    arbitration,  the court on just terms shall stay any judicial
 8    proceeding that involves a claim alleged to be subject to the
 9    arbitration until the court renders a  final  decision  under
10    this section.
11        (g)  If  the  court orders arbitration, the court on just
12    terms shall stay any  judicial  proceeding  that  involves  a
13    claim  subject  to the arbitration. If a claim subject to the
14    arbitration is severable, the court may  limit  the  stay  to
15    that claim.

16        Section 8.  Provisional remedies.
17        (a)  Before  an arbitrator is appointed and is authorized
18    and able to act, the court, upon motion  of  a  party  to  an
19    arbitration proceeding and for good cause shown, may enter an
20    order  for  provisional remedies to protect the effectiveness
21    of the arbitration proceeding to the same  extent  and  under
22    the same conditions as if the controversy were the subject of
23    a civil action.
24        (b)  After  an  arbitrator is appointed and is authorized
25    and able to act:
26             (1)  the  arbitrator  may  issue  such  orders   for
27        provisional  remedies,  including  interim awards, as the
28        arbitrator finds necessary to protect  the  effectiveness
29        of the arbitration proceeding and to promote the fair and
30        expeditious  resolution  of  the controversy, to the same
31        extent  and  under  the  same  conditions   as   if   the
32        controversy were the subject of a civil action and
33             (2)  a  party  to an arbitration proceeding may move
 
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 1        the court for a provisional remedy only if the matter  is
 2        urgent  and  the  arbitrator is not able to act timely or
 3        the arbitrator cannot provide an adequate remedy.
 4        (c)  A party does not waive a  right  of  arbitration  by
 5    making a motion under subsection (a)  or (b).

 6        Section 9.  Initiation of arbitration.
 7        (a)  A  person  initiates  an  arbitration  proceeding by
 8    giving notice in  a  record  to  the  other  parties  to  the
 9    agreement  to  arbitrate  in  the  agreed  manner between the
10    parties or, in the absence  of  agreement,  by  certified  or
11    registered mail, return receipt requested and obtained, or by
12    service as authorized for the commencement of a civil action.
13    The  notice  must  describe the nature of the controversy and
14    the remedy sought.
15        (b)  Unless a person objects for lack or insufficiency of
16    notice under Section 15(c)  not later than the  beginning  of
17    the  arbitration  hearing,  the  person  by  appearing at the
18    hearing waives any objection to lack of or  insufficiency  of
19    notice.

20        Section   10.    Consolidation  of  separate  arbitration
21    proceedings.
22        (a)  Except as otherwise provided in subsection (c), upon
23    motion of a party to an  agreement  to  arbitrate  or  to  an
24    arbitration  proceeding, the court may order consolidation of
25    separate arbitration proceedings as to all  or  some  of  the
26    claims if:
27             (1)  there  are  separate agreements to arbitrate or
28        separate arbitration proceedings between the same persons
29        or one of them is a party  to  a  separate  agreement  to
30        arbitrate  or  a  separate  arbitration proceeding with a
31        third person;
32             (2)  the  claims  subject  to  the   agreements   to
 
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 1        arbitrate   arise  in  substantial  part  from  the  same
 2        transaction or series of related transactions;
 3             (3)  the existence of a common issue of law or  fact
 4        creates  the  possibility of conflicting decisions in the
 5        separate arbitration proceedings; and
 6             (4)  prejudice   resulting   from   a   failure   to
 7        consolidate is not outweighed by the risk of undue  delay
 8        or  prejudice  to  the  rights  of or hardship to parties
 9        opposing consolidation.
10        (b)  The  court  may  order  consolidation  of   separate
11    arbitration  proceedings  as  to  some claims and allow other
12    claims to be resolved in separate arbitration proceedings.
13        (c)  The court may not order consolidation of the  claims
14    of  a  party  to  an  agreement to arbitrate if the agreement
15    prohibits consolidation.

16        Section 11.  Appointment  of  arbitrator;  service  as  a
17    neutral arbitrator.
18        (a)  If the parties to an agreement to arbitrate agree on
19    a  method  for  appointing an arbitrator, that method must be
20    followed, unless the method fails. If the  parties  have  not
21    agreed on a method, the agreed method fails, or an arbitrator
22    appointed  fails  or is unable to act and a successor has not
23    been appointed, the court,  on  motion  of  a  party  to  the
24    arbitration  proceeding,  shall  appoint  the  arbitrator. An
25    arbitrator so appointed has all the powers of  an  arbitrator
26    designated   in  the  agreement  to  arbitrate  or  appointed
27    pursuant to the agreed method.
28        (b)  An individual who has a known, direct, and  material
29    interest  in  the  outcome of the arbitration proceeding or a
30    known, existing, and substantial relationship  with  a  party
31    may not serve as an arbitrator required by an agreement to be
32    neutral.
 
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 1        Section 12.  Disclosure by arbitrator.
 2        (a)  Before  accepting  appointment, an individual who is
 3    requested  to  serve  as  an  arbitrator,  after   making   a
 4    reasonable  inquiry,  shall  disclose  to  all parties to the
 5    agreement to arbitrate and arbitration proceeding and to  any
 6    other  arbitrators  any  known facts that a reasonable person
 7    would consider likely  to  affect  the  impartiality  of  the
 8    arbitrator in the arbitration proceeding, including:
 9             (1)  a financial or personal interest in the outcome
10        of the arbitration proceeding; and
11             (2)  an  existing  or  past relationship with any of
12        the  parties  to  the  agreement  to  arbitrate  or   the
13        arbitration proceeding, their counsel or representatives,
14        a witness, or another arbitrators.
15        (b)  An   arbitrator   has  a  continuing  obligation  to
16    disclose to all parties to the  agreement  to  arbitrate  and
17    arbitration proceeding and to any other arbitrators any facts
18    that  the arbitrator learns after accepting appointment which
19    a reasonable person  would  consider  likely  to  affect  the
20    impartiality of the arbitrator.
21        (c)  If  an  arbitrator  discloses  a  fact  required  by
22    subsection  (a)  or  (b)  to  be disclosed and a party timely
23    objects to  the  appointment  or  continued  service  of  the
24    arbitrator  based  upon the fact disclosed, the objection may
25    be a ground under Section  23(a)(2)  for  vacating  an  award
26    made by the arbitrator.
27        (d)  If  the  arbitrator  did  not  disclose  a  fact  as
28    required by subsection (a) or (b), upon timely objection by a
29    party, the court under Section 23(a)(2)  may vacate an award.
30        (e)  An  arbitrator appointed as a neutral arbitrator who
31    does not disclose a known, direct, and material  interest  in
32    the  outcome  of  the  arbitration  proceeding  or  a  known,
33    existing,  and  substantial  relationship  with  a  party  is
34    presumed   to  act  with  evident  partiality  under  Section
 
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 1    23(a)(2).
 2        (f)  If the parties to an arbitration proceeding agree to
 3    the procedures of an arbitration organization  or  any  other
 4    procedures  for  challenges to arbitrators before an award is
 5    made, substantial  compliance  with  those  procedures  is  a
 6    condition  precedent  to  a motion to vacate an award on that
 7    ground under Section 23(a)(2).

 8        Section 13.  Action by majority.  If there is  more  than
 9    one arbitrator, the powers of an arbitrator must be exercised
10    by  a  majority  of  the  arbitrators,  but all of them shall
11    conduct the hearing under Section 15(c).

12        Section  14.   Immunity  of  arbitrator;  competency   to
13    testify; attorney's fees and costs.
14        (a)  An  arbitrator or an arbitration organization acting
15    in that capacity is immune from civil liability to  the  same
16    extent  as  a  judge  of  a  court  of this State acting in a
17    judicial capacity.
18        (b)  The immunity afforded by  this  section  supplements
19    any immunity under other law.
20        (c)  The  failure  of  an arbitrator to make a disclosure
21    required by Section 12 does not cause any  loss  of  immunity
22    under this section.
23        (d)  In    a   judicial,   administrative,   or   similar
24    proceeding, an arbitrator or representative of an arbitration
25    organization is not competent to  testify,  and  may  not  be
26    required  to  produce  records  as to any statement, conduct,
27    decision,  or  ruling  occurring   during   the   arbitration
28    proceeding,  to the same extent as a judge of a court of this
29    State acting in a judicial capacity. This subsection does not
30    apply:
31             (1)  to the extent necessary to determine the  claim
32        of    an   arbitrator,   arbitration   organization,   or
 
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 1        representative of the arbitration organization against  a
 2        party to the arbitration proceeding; or
 3             (2)  to  a  hearing  on  a motion to vacate an award
 4        under Section 23(a)(1) or (2) if the  movant  establishes
 5        prima facie that a ground for vacating the award exists.
 6        (e)  If  a  person  commences  a  civil action against an
 7    arbitrator, arbitration organization, or representative of an
 8    arbitration organization arising from  the  services  of  the
 9    arbitrator,  organization,  or  representative or if a person
10    seeks to compel an  arbitrator  or  a  representative  of  an
11    arbitration  organization  to  testify  or produce records in
12    violation of subsection (d), and the court decides  that  the
13    arbitrator, arbitration organization, or representative of an
14    arbitration  organization  is  immune from civil liability or
15    that the arbitrator or representative of the organization  is
16    not  competent  to  testify,  the  court  shall  award to the
17    arbitrator,  organization,   or   representative   reasonable
18    attorney's fees and other reasonable expenses of litigation.

19        Section 15.  Arbitration process.
20        (a)  An  arbitrator  may  conduct  an arbitration in such
21    manner as the arbitrator considers appropriate for a fair and
22    expeditious disposition  of  the  proceeding.  The  authority
23    conferred  upon  the  arbitrator  includes  the power to hold
24    conferences with the parties to  the  arbitration  proceeding
25    before  the  hearing  and, among other matters, determine the
26    admissibility,  relevance,  materiality  and  weight  of  any
27    evidence.
28        (b)  An arbitrator  may  decide  a  request  for  summary
29    disposition of a claim or particular issue:
30             (1)  if all interested parties agree; or
31             (2)  upon  request  of  one party to the arbitration
32        proceeding if  that  party  gives  notice  to  all  other
33        parties  to  the proceeding, and the other parties have a
 
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 1        reasonable opportunity to respond.
 2        (c)  If an arbitrator orders a  hearing,  the  arbitrator
 3    shall set a time and place and give notice of the hearing not
 4    less than five days before the hearing begins. Unless a party
 5    to  the  arbitration proceeding makes an objection to lack or
 6    insufficiency of notice not later than the beginning  of  the
 7    hearing,  the  party's  appearance  at the hearing waives the
 8    objection.  Upon  request  of  a  party  to  the  arbitration
 9    proceeding and for good cause shown, or upon the arbitrator's
10    own initiative, the arbitrator may adjourn the  hearing  from
11    time to time as necessary but may not postpone the hearing to
12    a  time  later  than that fixed by the agreement to arbitrate
13    for making the award unless the parties  to  the  arbitration
14    proceeding  consent  to a later date. The arbitrator may hear
15    and  decide  the  controversy  upon  the  evidence   produced
16    although  a  party  who  was duly notified of the arbitration
17    proceeding did not appear. The court, on request, may  direct
18    the  arbitrator  to conduct the hearing promptly and render a
19    timely decision.
20        (d)  At a hearing under subsection (c), a  party  to  the
21    arbitration  proceeding  has  a right to be heard, to present
22    evidence material to the controversy,  and  to  cross-examine
23    witnesses appearing at the hearing.
24        (e)  If  an  arbitrator ceases or is unable to act during
25    the arbitration proceeding, a replacement arbitrator must  be
26    appointed  in  accordance  with  Section  11  to continue the
27    proceeding and to resolve the controversy.

28        Section 16.  Representation by lawyer.   A  party  to  an
29    arbitration proceeding may be represented by a lawyer.

30        Section    17.     Witnesses;   subpoenas;   depositions;
31    discovery.
32        (a)  An  arbitrator  may  issue  a   subpoena   for   the
 
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 1    attendance of a witness and for the production of records and
 2    other  evidence  at  any  hearing and may administer oaths. A
 3    subpoena  must  be  served  in  the  manner  for  service  of
 4    subpoenas in a civil action and, upon motion to the court  by
 5    a  party  to  the  arbitration  proceeding or the arbitrator,
 6    enforced in the manner for  enforcement  of  subpoenas  in  a
 7    civil action.
 8        (b)  In  order to make the proceedings fair, expeditious,
 9    and cost effective, upon request of a party to or  a  witness
10    in  an  arbitration  proceeding,  an  arbitrator may permit a
11    deposition of any witness to be taken for use as evidence  at
12    the hearing, including a witness who cannot be subpoenaed for
13    or  is  unable  to  attend  a  hearing.  The arbitrator shall
14    determine the conditions under which the deposition is taken.
15        (c)  An arbitrator  may  permit  such  discovery  as  the
16    arbitrator  decides  is  appropriate  in  the  circumstances,
17    taking   into  account  the  needs  of  the  parties  to  the
18    arbitration proceeding and other  affected  persons  and  the
19    desirability  of making the proceeding fair, expeditious, and
20    cost effective.
21        (d)  If an arbitrator permits discovery under  subsection
22    (c),  the  arbitrator  may  order  a party to the arbitration
23    proceeding to comply with the arbitrator's  discovery-related
24    orders,  issue  subpoenas for the attendance of a witness and
25    for the  production  of  records  and  other  evidence  at  a
26    discovery  proceeding, and take action against a noncomplying
27    party to the extent a court could if the controversy were the
28    subject of a civil action in this State.
29        (e)  An  arbitrator  may  issue  a  protective  order  to
30    prevent   the   disclosure   of    privileged    information,
31    confidential    information,   trade   secrets,   and   other
32    information protected from disclosure to the extent  a  court
33    could  if  the controversy were the subject of a civil action
34    in this State.
 
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 1        (f)  All laws  compelling  a  person  under  subpoena  to
 2    testify  and  all fees for attending a judicial proceeding, a
 3    deposition, or a discovery proceeding as a witness  apply  to
 4    an  arbitration  proceeding  as  if  the controversy were the
 5    subject of a civil action in this State.
 6        (g)  The   court    may    enforce    a    subpoena    or
 7    discovery-related  order  for  the  attendance  of  a witness
 8    within this State and for the production of records and other
 9    evidence issued  by  an  arbitrator  in  connection  with  an
10    arbitration  proceeding  in  another  State  upon  conditions
11    determined  by  the  court  so  as  to  make  the arbitration
12    proceeding fair, expeditious, and cost effective. A  subpoena
13    or discovery-related order issued by an arbitrator in another
14    State  must  be  served  in  the  manner  provided by law for
15    service of subpoenas in a civil action  in  this  State  and,
16    upon  motion  to  the  court  by  a  party to the arbitration
17    proceeding or the arbitrator, enforced in the manner provided
18    by law for enforcement of subpoenas in a civil action in this
19    State.

20        Section 18.  Judicial enforcement of preaward  ruling  by
21    arbitrator.   If  an  arbitrator  makes  a preaward ruling in
22    favor of a party to the arbitration proceeding, the party may
23    request the arbitrator to  incorporate  the  ruling  into  an
24    award  under Section 19. A prevailing party may make a motion
25    to the court for an expedited  order  to  confirm  the  award
26    under  Section  22,  in  which case the court shall summarily
27    decide the motion. The court shall issue an order to  confirm
28    the award unless the court vacates, modifies, or corrects the
29    award under Section 23 or 24.

30        Section 19.  Award.
31        (a)  An  arbitrator  shall make a record of an award. The
32    record must be  signed  or  otherwise  authenticated  by  any
 
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 1    arbitrator  who concurs with the award. The arbitrator or the
 2    arbitration organization shall  give  notice  of  the  award,
 3    including  a  copy  of  the  award,  to  each  party  to  the
 4    arbitration proceeding.
 5        (b)  An  award  must be made within the time specified by
 6    the agreement to arbitrate  or,  if  not  specified  therein,
 7    within the time ordered by the court. The court may extend or
 8    the  parties  to  the  arbitration  proceeding may agree in a
 9    record to extend the time. The court or the parties may do so
10    within or after the time specified or ordered. A party waives
11    any objection that an award was not timely  made  unless  the
12    party  gives notice of the objection to the arbitrator before
13    receiving notice of the award.

14        Section 20.  Change of award by arbitrator.
15        (a)  On  motion  to  an  arbitrator  by  a  party  to  an
16    arbitration proceeding, the arbitrator may modify or  correct
17    an award:
18             (1)  upon  a  ground  stated in Section 24(a)(1)  or
19        (3);
20             (2)  because the arbitrator has not made a final and
21        definite award upon a claim submitted by the  parties  to
22        the arbitration proceeding; or
23             (3)  to clarify the award.
24        (b)  A  motion  under  subsection  (a)  must  be made and
25    notice given to all parties within 20 days after  the  movant
26    receives notice of the award.
27        (c)  A  party  to  the  arbitration  proceeding must give
28    notice of any objection to the motion within  10  days  after
29    receipt of the notice.
30        (d)  If  a  motion  to the court is pending under Section
31    22, 23, or  24,  the  court  may  submit  the  claim  to  the
32    arbitrator  to  consider  whether  to  modify  or correct the
33    award:
 
                            -15-     LRB093 02456 NHT 02466 b
 1             (1)  upon a ground stated  in  Section  24(a)(1)  or
 2        (3);
 3             (2)  because the arbitrator has not made a final and
 4        definite  award  upon a claim submitted by the parties to
 5        the arbitration proceeding; or
 6             (3)  to clarify the award.
 7        (e)  An award modified  or  corrected  pursuant  to  this
 8    section is subject to Sections 19(a), 22, 23, and 24.

 9        Section  21.   Remedies; fees and expenses of arbitration
10    proceeding.
11        (a)  An arbitrator may award punitive  damages  or  other
12    exemplary  relief  if such an award is authorized by law in a
13    civil action  involving  the  same  claim  and  the  evidence
14    produced  at  the hearing justifies the award under the legal
15    standards otherwise applicable to the claim.
16        (b)  An arbitrator may award reasonable  attorney's  fees
17    and other reasonable expenses of arbitration if such an award
18    is  authorized  by  law  in a civil action involving the same
19    claim or by the agreement of the parties to  the  arbitration
20    proceeding.
21        (c)  As  to  all  remedies other than those authorized by
22    subsections  (a)  and  (b),  an  arbitrator  may  order  such
23    remedies as the arbitrator  considers  just  and  appropriate
24    under  the  circumstances  of the arbitration proceeding. The
25    fact that such a remedy could not or would not be granted  by
26    the  court  is  not a ground for refusing to confirm an award
27    under Section 22 or for vacating an award under Section 23.
28        (d)  An arbitrator's expenses  and  fees,  together  with
29    other expenses, must be paid as provided in the award.
30        (e)  If  an  arbitrator  awards punitive damages or other
31    exemplary relief under subsection (a), the  arbitrator  shall
32    specify  in  the  award  the basis in fact justifying and the
33    basis in law authorizing the award and state  separately  the
 
                            -16-     LRB093 02456 NHT 02466 b
 1    amount of the punitive damages or other exemplary relief.

 2        Section  22.  Confirmation of award.  After a party to an
 3    arbitration proceeding receives notice of an award, the party
 4    may make a motion to the court for an  order  confirming  the
 5    award  at which time the court shall issue a confirming order
 6    unless the award is modified or corrected pursuant to Section
 7    20 or 24 or is vacated pursuant to Section 23.

 8        Section 23.  Vacating award.
 9        (a)  Upon  motion  to  the  court  by  a  party   to   an
10    arbitration  proceeding, the court shall vacate an award made
11    in the arbitration proceeding if:
12             (1)  the award was procured by corruption, fraud, or
13        other undue means;
14             (2)  there was:
15                  (A)  evident  partiality   by   an   arbitrator
16             appointed as a neutral arbitrator;
17                  (B)  corruption by an arbitrator; or
18                  (C)  misconduct  by  an  arbitrator prejudicing
19             the rights of a party to the arbitration proceeding;
20             (3)  an arbitrator refused to postpone  the  hearing
21        upon   showing  of  sufficient  cause  for  postponement,
22        refused to consider evidence material to the controversy,
23        or otherwise conducted the hearing  contrary  to  Section
24        15,  so  as  to  prejudice  substantially the rights of a
25        party to the arbitration proceeding;
26             (4)  an arbitrator exceeded the arbitrator's powers;
27             (5)  there was no agreement to arbitrate, unless the
28        person participated in the arbitration proceeding without
29        raising the objection under Section 15(c)  not later than
30        the beginning of the arbitration hearing; or
31             (6)  the arbitration was  conducted  without  proper
32        notice of the initiation of an arbitration as required in
 
                            -17-     LRB093 02456 NHT 02466 b
 1        Section  9 so as to prejudice substantially the rights of
 2        a party to the arbitration proceeding.
 3        (b)  A motion under this section must be filed within  90
 4    days  after  the movant receives notice of the award pursuant
 5    to Section 19 or within 90 days  after  the  movant  receives
 6    notice  of  a modified or corrected award pursuant to Section
 7    20, unless the movant alleges that the award was procured  by
 8    corruption,  fraud,  or  other undue means, in which case the
 9    motion must be made within 90 days after the ground is  known
10    or  by  the exercise of reasonable care would have been known
11    by the movant.
12        (c)  If the court vacates an award on a ground other than
13    that  set  forth  in  subsection  (a)(5),  it  may  order   a
14    rehearing.  If  the  award  is  vacated on a ground stated in
15    subsection (a)(1)  or (2), the rehearing must be before a new
16    arbitrator. If the award is vacated on  a  ground  stated  in
17    subsection  (a)(3),  (4), or (6), the rehearing may be before
18    the  arbitrator  who  made  the  award  or  the  arbitrator's
19    successor. The arbitrator must render  the  decision  in  the
20    rehearing  within  the  same time as that provided in Section
21    19(b)  for an award.
22        (d)  If the court denies a motion to vacate an award,  it
23    shall  confirm the award unless a motion to modify or correct
24    the award is pending.

25        Section 24.  Modification or correction of award.
26        (a)  Upon motion made within 90  days  after  the  movant
27    receives notice of the award pursuant to Section 19 or within
28    90  days  after  the  movant receives notice of a modified or
29    corrected award pursuant  to  Section  20,  the  court  shall
30    modify or correct the award if:
31             (1)  there     was     an    evident    mathematical
32        miscalculation or an evident mistake in  the  description
33        of a person, thing, or property referred to in the award;
 
                            -18-     LRB093 02456 NHT 02466 b
 1             (2)  the arbitrator has made an award on a claim not
 2        submitted   to  the  arbitrator  and  the  award  may  be
 3        corrected without affecting the merits  of  the  decision
 4        upon the claims submitted; or
 5             (3)  the  award is imperfect in a matter of form not
 6        affecting the  merits  of  the  decision  on  the  claims
 7        submitted.
 8        (b)  If  a  motion made under subsection (a)  is granted,
 9    the court shall modify or correct and confirm  the  award  as
10    modified  or  corrected. Otherwise, unless a motion to vacate
11    is pending, the court shall confirm the award.
12        (c)  A motion to modify or correct an award  pursuant  to
13    this section may be joined with a motion to vacate the award.

14        Section  25.   Judgment  on  award;  attorney's  fees and
15    litigation expenses.
16        (a)  Upon granting an order confirming, vacating  without
17    directing a rehearing, modifying, or correcting an award, the
18    court  shall  enter  a  judgment in conformity therewith. The
19    judgment may be recorded, docketed, and enforced as any other
20    judgment in a civil action.
21        (b)  A court may allow reasonable costs of the motion and
22    subsequent judicial proceedings.
23        (c)  On application of a prevailing party to a  contested
24    judicial  proceeding  under  Section 22, 23, or 24, the court
25    may add  reasonable  attorney's  fees  and  other  reasonable
26    expenses  of  litigation  incurred  in  a judicial proceeding
27    after the award is made to a  judgment  confirming,  vacating
28    without  directing  a  rehearing, modifying, or correcting an
29    award.

30        Section 26.  Jurisdiction.
31        (a)  A court of this State having jurisdiction  over  the
32    controversy  and  the  parties  may  enforce  an agreement to
 
                            -19-     LRB093 02456 NHT 02466 b
 1    arbitrate.
 2        (b)  An agreement to arbitrate providing for  arbitration
 3    in  this State confers exclusive jurisdiction on the court to
 4    enter judgment on an award under this Act.

 5        Section 27.  Venue.  A motion pursuant to Section 5  must
 6    be  made in the court of the county in which the agreement to
 7    arbitrate specifies the arbitration hearing is to be held or,
 8    if the hearing has been held, in the court of the  county  in
 9    which  it  was held. Otherwise, the motion may be made in the
10    court of any county in which an adverse party resides or  has
11    a  place  of business or, if no adverse party has a residence
12    or place of business in this  State,  in  the  court  of  any
13    county  in this State. All subsequent motions must be made in
14    the  court  hearing  the  initial  motion  unless  the  court
15    otherwise directs.

16        Section 28.  Appeals.
17        (a)  An appeal may be taken from:
18             (1)  an   order   denying   a   motion   to   compel
19        arbitration;
20             (2)  an order granting a motion to stay arbitration;
21             (3)  an order confirming or denying confirmation  of
22        an award;
23             (4)  an order modifying or correcting an award;
24             (5)  an  order vacating an award without directing a
25        rehearing; or
26             (6)  a final judgment entered pursuant to this Act.
27        (b)  An appeal under this section must be taken  as  from
28    an order or a judgment in a civil action.

29        Section  29.  Uniformity of application and construction.
30    In applying and construing this  uniform  act,  consideration
31    must  be  given  to the need to promote uniformity of the law
 
                            -20-     LRB093 02456 NHT 02466 b
 1    with respect to its subject matter among  States  that  enact
 2    it.

 3        Section  30.   Relationship  to  Electronic Signatures in
 4    Global and National Commerce Act. The provisions of this  Act
 5    governing  the  legal  effect, validity, or enforceability of
 6    electronic records or signatures, and of contracts formed  or
 7    performed  with the use of such records or signatures conform
 8    to  the  requirements  of  Section  102  of  the   Electronic
 9    Signatures in Global and National Commerce Act.

10        Section 33.  Savings clause.  This Act does not affect an
11    action  or  proceeding commenced or right accrued before this
12    Act takes effect. Subject  to  Section  3  of  this  Act,  an
13    arbitration  agreement made before the effective date of this
14    Act is governed by the Uniform Arbitration Act.

15        Section 905.  The Illinois Public Labor Relations Act  is
16    amended by changing Sections 7 and 8 as follows:

17        (5 ILCS 315/7) (from Ch. 48, par. 1607)
18        Sec.  7.   Duty  to  bargain.   A public employer and the
19    exclusive representative have the authority and the  duty  to
20    bargain collectively set forth in this Section.
21        For  the  purposes of this Act, "to bargain collectively"
22    means the performance of the mutual obligation of the  public
23    employer   or   his   designated   representative   and   the
24    representative  of the public employees to meet at reasonable
25    times, including meetings in  advance  of  the  budget-making
26    process,  and  to  negotiate  in  good  faith with respect to
27    wages,  hours,  and  other  conditions  of  employment,   not
28    excluded  by  Section 4 of this Act, or the negotiation of an
29    agreement,  or  any  question  arising  thereunder  and   the
30    execution  of  a written contract incorporating any agreement
 
                            -21-     LRB093 02456 NHT 02466 b
 1    reached if requested by either  party,  but  such  obligation
 2    does  not  compel  either  party  to  agree  to a proposal or
 3    require the making of a concession.
 4        The duty "to bargain collectively" shall also include  an
 5    obligation  to  negotiate  over  any  matter  with respect to
 6    wages,  hours  and  other  conditions  of   employment,   not
 7    specifically   provided   for   in   any  other  law  or  not
 8    specifically in violation of the provisions of any  law.   If
 9    any  other   law pertains, in part, to a matter affecting the
10    wages, hours and other conditions of employment,  such  other
11    law  shall  not be construed as limiting the duty "to bargain
12    collectively"  and  to  enter  into   collective   bargaining
13    agreements   containing   clauses  which  either  supplement,
14    implement, or relate to the  effect  of  such  provisions  in
15    other laws.
16        The  duty  "to  bargain  collectively" shall also include
17    negotiations as to  the  terms  of  a  collective  bargaining
18    agreement.  The parties may, by mutual agreement, provide for
19    arbitration of impasses resulting  from  their  inability  to
20    agree   upon   wages,  hours  and  terms  and  conditions  of
21    employment  to  be  included  in  a   collective   bargaining
22    agreement.  Such  arbitration  provisions shall be subject to
23    the  Illinois  "Uniform  Arbitration  Act  or   the   Uniform
24    Arbitration  Act (2000), as applicable," unless agreed by the
25    parties.
26        The duty "to bargain collectively" shall also  mean  that
27    no  party to a collective bargaining contract shall terminate
28    or modify such  contract,  unless  the  party  desiring  such
29    termination or modification:
30        (1)  serves  a written notice upon the other party to the
31    contract of the proposed termination or modification 60  days
32    prior  to  the  expiration date thereof, or in the event such
33    contract contains no expiration date, 60 days  prior  to  the
34    time it is proposed to make such termination or modification;
 
                            -22-     LRB093 02456 NHT 02466 b
 1        (2)  offers  to  meet and confer with the other party for
 2    the purpose of negotiating  a  new  contract  or  a  contract
 3    containing the proposed modifications;
 4        (3)  notifies  the Board within 30 days after such notice
 5    of the existence of a dispute, provided no agreement has been
 6    reached by that time; and
 7        (4)  continues  in  full  force   and   effect,   without
 8    resorting  to strike or lockout, all the terms and conditions
 9    of the existing contract for a period of 60 days  after  such
10    notice  is  given  to the other party or until the expiration
11    date of such contract, whichever occurs later.
12        The duties imposed upon employers,  employees  and  labor
13    organizations  by  paragraphs (2), (3)  and (4)  shall become
14    inapplicable upon an intervening certification of the  Board,
15    under  which  the labor organization, which is a party to the
16    contract,  has  been  superseded  as  or  ceased  to  be  the
17    exclusive representative of the  employees  pursuant  to  the
18    provisions of subsection (a)  of Section 9, and the duties so
19    imposed  shall  not be construed as requiring either party to
20    discuss or  agree  to  any  modification  of  the  terms  and
21    conditions  contained  in  a  contract for a fixed period, if
22    such modification is to become effective  before  such  terms
23    and  conditions  can  be reopened under the provisions of the
24    contract.
25    (Source: P.A. 83-1012.)

26        (5 ILCS 315/8) (from Ch. 48, par. 1608)
27        Sec. 8.  Grievance Procedure.  The collective  bargaining
28    agreement  negotiated  between the employer and the exclusive
29    representative shall contain a grievance resolution procedure
30    which shall apply to all employees in the bargaining unit and
31    shall provide for final and binding arbitration  of  disputes
32    concerning   the  administration  or  interpretation  of  the
33    agreement unless mutually agreed  otherwise.   Any  agreement
 
                            -23-     LRB093 02456 NHT 02466 b
 1    containing  a  final  and binding arbitration provision shall
 2    also contain a provision prohibiting strikes for the duration
 3    of the agreement.  The grievance and  arbitration  provisions
 4    of  any  collective  bargaining agreement shall be subject to
 5    the  Illinois  "Uniform  Arbitration  Act  or   the   Uniform
 6    Arbitration  Act  (2000), as applicable,".  The costs of such
 7    arbitration shall be borne equally by the  employer  and  the
 8    employee organization.
 9    (Source: P.A. 83-1012.)

10        Section  907.  The Data Processing Services for Financial
11    Institutions  Act  is  amended  by  changing  Section  15  as
12    follows:

13        (205 ILCS 715/15)
14        Sec. 15.  Arbitration of disputes.   In  the  case  of  a
15    dispute  between  the  independent  data processing servicers
16    regarding any terms or conditions of an interface  agreement,
17    or  in  the event that a dispute regarding proposed terms and
18    conditions results in the failure  of  the  independent  data
19    processing  servicers to enter into an interface agreement as
20    required by this Act, the parties shall  be  deemed  to  have
21    agreed  to  the  appointment  of  an arbitrator for a binding
22    resolution of the dispute consistent with the  provisions  of
23    the  Uniform  Arbitration  Act or the Uniform Arbitration Act
24    (2000), as applicable, unless the parties agree to some other
25    process for binding arbitration or unless the aggrieved party
26    seeks  court  action.  Any  decision  by  the  arbitrator  in
27    connection with any  arbitration  shall  be  determined  only
28    after  an opportunity for a hearing. Anything to the contrary
29    in this Act notwithstanding, any right of arbitration granted
30    under this Act is subject to the right  of  either  party  to
31    seek court action.
32    (Source: P.A. 91-742, eff. 6-2-00.)
 
                            -24-     LRB093 02456 NHT 02466 b
 1        Section  910.  The  Illinois Insurance Code is amended by
 2    changing Section 809.1 as follows:

 3        (215 ILCS 5/809.1)
 4        Sec. 809.1.  Arbitration.  In  the  event  of  a  dispute
 5    between  a  policyholder  and  an  insurer  as  to  whether a
 6    residence or commercial building covered by  mine  subsidence
 7    insurance has been damaged by mine subsidence, a policyholder
 8    shall have the right to submit that dispute to arbitration in
 9    accordance with this Section.  No policyholder shall have the
10    right  under  this Section to submit to arbitration any issue
11    regarding the amount of loss or damage caused to a  residence
12    or commercial building by mine subsidence.
13        Arbitration  may  be initiated only after the insurer has
14    made a decision that the  residence  or  commercial  building
15    covered  by mine subsidence insurance was not damaged by mine
16    subsidence and  so  notified  the  policyholder  in  writing,
17    accompanied  by  a  notice  informing the policyholder of the
18    policyholder's right to arbitration and  containing  specific
19    reference  to  this Section.  Within 60 days after receipt by
20    the policyholder of the notification,  the  policyholder  may
21    initiate   arbitration  in  accordance  with  the  Commercial
22    Arbitration Rules of the American Arbitration Association, as
23    then in effect.  All costs of the arbitration shall be  borne
24    by  the  losing  party.   Appeals  from  the  decision of the
25    arbitrators  shall  be  in  accordance   with   the   Uniform
26    Arbitration  Act  or  the  Uniform Arbitration Act (2000), as
27    applicable, as in effect in Illinois.
28    (Source: P.A. 88-379.)

29        Section 915.  The Uniform Arbitration Act is  amended  by
30    changing Sections 19 and 23 as follows:

31        (710 ILCS 5/19) (from Ch. 10, par. 119)
 
                            -25-     LRB093 02456 NHT 02466 b
 1        Sec. 19.  Application of Act not retroactive.
 2        (a)  This  Act applies only to agreements made subsequent
 3    to the effective date of this Act.
 4        (b)  This Act applies only if the Uniform Arbitration Act
 5    (2000) does not apply.
 6    (Source: Laws 1961, p. 3844.)

 7        (710 ILCS 5/23) (from Ch. 10, par. 123)
 8        Sec. 23. Repeal.
 9        (a)  "An  Act  to  revise  the   law   in   relation   to
10    arbitrations and awards", approved June 11, 1917, as amended,
11    is  repealed;  provided,  however, that any agreement entered
12    into prior to the effective date of this  Act  to  submit  to
13    arbitration  a  dispute existing at the date of the agreement
14    shall be  governed  by  said  Act  approved  June  11,  1917;
15    provided  further, that this Act does not impair the validity
16    of any proceeding under said Act,  approved  June  11,  1917,
17    commenced prior to the effective date of this Act.
18        (b)  Effective  on  July  1,  2004, this Act is repealed.
19    However, this Act continues to  apply  after  its  repeal  as
20    provided  under  Section  33  of  the Uniform Arbitration Act
21    (2000).
22    (Source: Laws 1961, p. 3844.)

23        Section 920.   The  Labor  Arbitration  Services  Act  is
24    amended by changing Section 2 as follows:

25        (710 ILCS 10/2) (from Ch. 48, par. 2302)
26        Sec.   2.    All  arbitration  proceedings  conducted  by
27    Department of Labor arbitrators pursuant to this Act shall be
28    subject to the provisions of the Uniform Arbitration  Act  or
29    the Uniform Arbitration Act (2000), as applicable.
30    (Source: P.A. 84-527.)
 
                            -26-     LRB093 02456 NHT 02466 b
 1        Section  925.  The Health Care Arbitration Act is amended
 2    by changing Sections 3 and 11 as follows:

 3        (710 ILCS 15/3) (from Ch. 10, par. 203)
 4        Sec. 3.  Applicability.  This  Act  shall  apply  to  and
 5    shall  govern  all agreements to arbitrate claims arising out
 6    of the providing  of  health  care  services.  Except   where
 7    inconsistent  with  the  provisions of this Act, the "Uniform
 8    Arbitration Act or the Uniform  Arbitration  Act  (2000),  as
 9    applicable,",  approved  August 24, 1961, as now or hereafter
10    amended,  shall  apply  to  and  govern   all   health   care
11    arbitration agreements.
12    (Source: P.A. 80-1012.)

13        (710 ILCS 15/11) (from Ch. 10, par. 211)
14        Sec. 11.  Discovery.  Discovery shall be available to all
15    parties in arbitration proceedings as provided in the Uniform
16    Arbitration  Act  or  the  Uniform Arbitration Act (2000), as
17    applicable.  Any party may apply to the court  for  necessary
18    orders.
19    (Source: P.A. 80-1012.)

20        Section   930.   The   Seed Arbitration Act is amended by
21    changing Section 75 as follows:

22        (710 ILCS 25/75) (from Ch. 10, par. 251-75)
23        Sec. 75.  Inapplicability of Uniform Arbitration Act  and
24    Health  Care  Arbitration  Act.   Claims  to  which  this Act
25    applies are not subject to the Uniform Arbitration Act or the
26    Uniform Arbitration Act (2000), as applicable, or the  Health
27    Care Arbitration Act.
28    (Source: P.A. 87-186.)

29        Section  935.   The Code of Civil Procedure is amended by
 
                            -27-     LRB093 02456 NHT 02466 b
 1    changing Section 2-1006A as follows:

 2        (735 ILCS 5/2-1006A) (from Ch. 110, par. 2-1006A)
 3        Sec. 2-1006A.  Uniform Arbitration Act. The provisions of
 4    the Uniform Arbitration Act or the  Uniform  Arbitration  Act
 5    (2000),  as  applicable,  shall  not  be  applicable  to  the
 6    proceedings under this Part 10A of Article II.
 7    (Source: P.A. 84-1308.)

 8        Section  940.  The Condominium Property Act is amended by
 9    changing Section 32 as follows:

10        (765 ILCS 605/32)
11        Sec.   32.  Alternate   dispute   resolution;  mediation;
12    arbitration.
13        (a)  The  declaration  or   bylaws   of   a   condominium
14    association  may require mediation or arbitration of disputes
15    in which the matter in controversy  has  either  no  specific
16    monetary  value or a value of $10,000 or less, other than the
17    levying and collection of assessments, or that arises out  of
18    violations   of   the   declaration,  bylaws,  or  rules  and
19    regulations of the condominium association.   A  dispute  not
20    required  to  be  mediated  or  arbitrated  by an association
21    pursuant to its powers under this Section, that is  submitted
22    to   mediation   or  arbitration  by  the  agreement  of  the
23    disputants, is also subject to this Section.
24        (b)  The Illinois Uniform Arbitration Act or the  Uniform
25    Arbitration  Act  (2000),  as  applicable,  shall  govern all
26    arbitrations proceeding under this Section.
27        (c)  The association may require the disputants  to  bear
28    the costs of mediation or arbitration.
29    (Source: P.A. 89-41, eff. 6-23-95.)

30        Section  945.  The Motor Vehicle Franchise Act is amended
 
                            -28-     LRB093 02456 NHT 02466 b
 1    by changing Section 12 as follows:

 2        (815 ILCS 710/12) (from Ch. 121 1/2, par. 762)
 3        Sec.  12.  Arbitration; administrative proceedings; civil
 4    actions; determining good cause.
 5        (a)  The franchiser and franchisee may agree to submit  a
 6    dispute  involving  Section  4,  5,  6,  7, 9, 10.1, or 11 to
 7    arbitration. Any such proceeding shall be conducted under the
 8    provisions of the Uniform  Arbitration  Act  or  the  Uniform
 9    Arbitration  Act  (2000),  as applicable, by a 3 member panel
10    composed of one member appointed by the  franchisee  and  one
11    member  appointed by the franchiser who together shall choose
12    the third member.
13        An arbitration proceeding hereunder for  a  remedy  under
14    paragraph  (6)  of subsection (d) or paragraph (6), (8), (10)
15    or (11) of subsection (e) of Section 4 of this Act  shall  be
16    commenced   by  written  notice  to  the  franchiser  by  the
17    objecting franchisee within 30 days from the date the  dealer
18    received notice to cancel, terminate, modify or not extend or
19    renew  an  existing franchise or selling agreement or refusal
20    to honor succession to ownership or refusal to honor  a  sale
21    or  transfer  or  to  grant  or  enter  into  the  additional
22    franchise  or  selling  agreement, or to relocate an existing
23    motor vehicle dealer; or within  60  days  of  the  date  the
24    franchisee  received  notice  in writing by the franchiser of
25    its determination under any provision  of  Section  4  (other
26    than  paragraph  (6) of subsection (d) or paragraph (6), (8),
27    (10) or (11) of subsection (e) of Section 4),  5,  6,  7,  9,
28    10.1,  or 11 of this Act; however, if notice of the provision
29    under which the determination has been made is not  given  by
30    the  franchiser,  then  the  proceeding shall be commenced as
31    provided by Section 14 of this Act.
32        The franchiser and the  franchisee  shall  appoint  their
33    respective  arbitrators  and  they  shall  select  the  third
 
                            -29-     LRB093 02456 NHT 02466 b
 1    arbitrator  within  14  days of receipt of such notice by the
 2    franchiser.  The arbitrators shall commence  hearings  within
 3    60  days  after all the arbitrators have been appointed and a
 4    decision shall be rendered within 30 days after completion of
 5    the hearing.
 6        During the pendency of the  arbitration,  any  party  may
 7    apply  to  a court of competent jurisdiction which shall have
 8    power to modify or stay the  effective  date  of  a  proposed
 9    additional  franchise  or selling agreement, or the effective
10    date of a proposed motor vehicle dealership relocation or the
11    effective date of a cancellation, termination or modification
12    or refusal to honor succession or refusal to allow a sale  or
13    transfer  or  extend  the  expiration  date of a franchise or
14    selling agreement pending a final determination of the issues
15    raised in the arbitration hearing  upon  such  terms  as  the
16    court may determine.  Any such modification or stay shall not
17    be  effective  for  more  than 60 days unless extended by the
18    court for good cause or unless  the  arbitration  hearing  is
19    then in progress.
20        (b)  If the franchiser and the franchisee have not agreed
21    to submit a dispute involving Section 4, 5, 6, 7, 9, 10.1, or
22    11  of  this  Act to arbitration under subsection (a), then a
23    proceeding  before  the  Motor  Vehicle   Review   Board   as
24    prescribed by subsection (c) or (d) of Section 12 and Section
25    29  of  this  Act  for  a  remedy  other  than  damages under
26    paragraph (6) of subsection (d) or paragraph (6), (8),  (10),
27    or  (11)  of subsection (e) of Section 4 of this Act shall be
28    commenced upon receipt by the Motor Vehicle Review Board of a
29    timely notice of protest or within 60 days of  the  date  the
30    franchisee  received  notice  in writing by the franchiser of
31    its determination under any provision of those Sections other
32    than paragraph (6) of subsection (d) or paragraph  (6),  (8),
33    (10),  or  (11)  of  subsection (e) of Section 4 of this Act;
34    however,  if  notice  of  the  provision  under   which   the
 
                            -30-     LRB093 02456 NHT 02466 b
 1    determination  has  been made is not given by the franchiser,
 2    then the proceeding shall be commenced as provided by Section
 3    14 of this Act.
 4        During the pendency of a proceeding under this Section, a
 5    party may apply to a court  of  competent  jurisdiction  that
 6    shall  have  power  to modify or stay the effective date of a
 7    proposed additional franchise or selling  agreement,  or  the
 8    effective   date  of  a  proposed  motor  vehicle  dealership
 9    relocation,  or  the  effective  date  of   a   cancellation,
10    termination,  or  modification, or extend the expiration date
11    of a franchise or  selling  agreement  or  refusal  to  honor
12    succession  to  ownership  or  refusal  to  approve a sale or
13    transfer pending a final determination  of the issues  raised
14    in  the  hearing  upon such terms as the court may determine.
15    Any modification or stay shall not be effective for more than
16    60 days unless extended by the court for good cause or unless
17    the hearing is then in progress.
18        (c)  In proceedings under (a) or  (b),  when  determining
19    whether  good  cause  has  been established for granting such
20    proposed additional franchise or selling  agreement,  or  for
21    relocating   an   existing   motor  vehicle  dealership,  the
22    arbitrators   or   Board   shall   consider   all    relevant
23    circumstances  in accordance with subsection (v) of Section 2
24    of this Act, including but not limited to:
25             (1)  whether the establishment  of  such  additional
26        franchise   or  the  relocation  of  such  motor  vehicle
27        dealership  is  warranted  by  economic   and   marketing
28        conditions including anticipated future changes;
29             (2)  the   retail   sales   and   service   business
30        transacted  by  the  objecting  motor  vehicle  dealer or
31        dealers and other motor vehicle dealers of the same  line
32        make with a place of business in the relevant market area
33        to be served by the additional franchise or the relocated
34        motor   vehicle  dealership  during  the  5  year  period
 
                            -31-     LRB093 02456 NHT 02466 b
 1        immediately preceding such  notice  as  compared  to  the
 2        business available to them;
 3             (3)  the investment necessarily made and obligations
 4        incurred by the objecting motor vehicle dealer or dealers
 5        and  other  motor  vehicle  dealers of the same line make
 6        with a place of business in the relevant market  area  to
 7        be  served  by  the additional franchise or the relocated
 8        motor vehicle dealership  to  perform  their  obligations
 9        under existing franchises or selling agreements; and, the
10        manufacturer  shall  give  reasonable credit for sales of
11        factory repurchase vehicles purchased  by  the  objecting
12        motor  vehicle  dealer or dealers and other motor vehicle
13        dealers of the same line make with the place of  business
14        in   the  relevant  market  area  to  be  served  by  the
15        additional  franchise  or  the  relocated  motor  vehicle
16        dealership, or the additional motor vehicle dealership or
17        other facility limited to the sale of factory  repurchase
18        or  late  model  vehicles,  at manufacturer authorized or
19        sponsored  auctions   in   determining   performance   of
20        obligations   under   existing   franchises   or  selling
21        agreements relating to total new vehicle sales;
22             (4)  the  permanency  of  the  investment   of   the
23        objecting motor vehicle dealer or dealers and other motor
24        vehicle  dealers  of  the  same line make with a place of
25        business in the relevant market area to be served by  the
26        additional  franchise  or  the  relocated  motor  vehicle
27        dealership;
28             (5)  whether  it  is  beneficial or injurious to the
29        public welfare for an additional franchise  or  relocated
30        motor vehicle dealership to be established;
31             (6)  whether  the  objecting motor vehicle dealer or
32        dealers and other motor vehicle dealers of the same  line
33        make with a place of business in the relevant market area
34        to  be  served  by the additional franchisee or relocated
 
                            -32-     LRB093 02456 NHT 02466 b
 1        motor   vehicle   dealership   are   providing   adequate
 2        competition and convenient consumer care  for  the  motor
 3        vehicles  of  the same line make owned or operated in the
 4        area  to  be  served  by  the  additional  franchise   or
 5        relocated motor vehicle dealership;
 6             (7)  whether  the  objecting motor vehicle dealer or
 7        dealers and other motor vehicle dealers of the same  line
 8        make with a place of business in the relevant market area
 9        to   be  served  by  the  additional  franchisee  or  the
10        relocated motor vehicle dealership  have  adequate  motor
11        vehicle  sales and service facilities, equipment, vehicle
12        parts and qualified personnel to reasonably  provide  for
13        the  needs  of the customer; provided, however, that good
14        cause shall not be shown solely by a desire  for  further
15        market penetration;
16             (8)  whether  the  establishment  of  an  additional
17        franchise or the relocation of a motor vehicle dealership
18        would be in the public interest;
19             (9)  whether  there  has been a material breach by a
20        motor vehicle dealer of the existing franchise  agreement
21        which creates a substantially detrimental effect upon the
22        distribution  of  the  franchiser's motor vehicles in the
23        affected motor vehicle dealer's relevant market  area  or
24        fraudulent   claims  for  warranty  work,  insolvency  or
25        inability to pay debts as they mature;
26             (10)  the  effect  of  an  additional  franchise  or
27        relocated motor  vehicle  dealership  upon  the  existing
28        motor  vehicle  dealers  of  the  same  line  make in the
29        relevant market area  to  be  served  by  the  additional
30        franchisee or relocated motor vehicle dealership; and
31             (11)  whether  the manufacturer has given reasonable
32        credit to the objecting motor vehicle dealer  or  dealers
33        and  other  motor  vehicle  dealers of the same line make
34        with a place of business in the relevant market  area  to
 
                            -33-     LRB093 02456 NHT 02466 b
 1        be  served by the additional franchise or relocated motor
 2        vehicle dealership or additional motor vehicle dealership
 3        or  other  facility  limited  to  the  sale  of   factory
 4        repurchase  or  late  model vehicles, for retail sales of
 5        factory  repurchase  vehicles  purchased  by  the   motor
 6        vehicle  dealer  or dealers at manufacturer authorized or
 7        sponsored auctions.
 8        (d)  In proceedings under subsection  (a)  or  (b),  when
 9    determining  whether  good  cause  has  been  established for
10    cancelling, terminating, refusing  to  extend  or  renew,  or
11    changing  or  modifying  the obligations of the motor vehicle
12    dealer as a condition to offering a renewal, replacement,  or
13    succeeding franchise or selling agreement, the arbitrators or
14    Board shall consider all relevant circumstances in accordance
15    with  subsection  (v) of Section 2 of this Act, including but
16    not limited to:
17             (1)  The amount of retail sales  transacted  by  the
18        franchisee  during a 5-year period immediately before the
19        date of the notice of proposed action as compared to  the
20        business available to the franchisee.
21             (2)  The investment necessarily made and obligations
22        incurred  by  the  franchisee  to perform its part of the
23        franchise.
24             (3)  The permanency of the franchisee's investment.
25             (4)  Whether it is injurious to the public  interest
26        for  the  franchise  to be cancelled or terminated or not
27        extended or modified, or the business  of  the  franchise
28        disrupted.
29             (5)  Whether   the  franchisee  has  adequate  motor
30        vehicle sales and service facilities, equipment,  vehicle
31        parts,  and  service  personnel to reasonably provide for
32        the need of the customers for the same line make of motor
33        vehicles handled by the franchisee.
34             (6)  Whether the franchisee  fails  to  fulfill  the
 
                            -34-     LRB093 02456 NHT 02466 b
 1        warranty  obligations  of the manufacturer required to be
 2        performed by the franchisee.
 3             (7)  The extent and materiality of the  franchisee's
 4        failure to comply with the terms of the franchise and the
 5        reasonableness and fairness of those terms.
 6             (8)  Whether  the owners of the franchise had actual
 7        knowledge of  the  facts  and  circumstances  upon  which
 8        cancellation  or termination, failure to extend or renew,
 9        or changing or modification of  the  obligations  of  the
10        franchisee   as   a  condition  to  offering  a  renewal,
11        replacement,   or   succeeding   franchise   or   selling
12        agreement.
13        (e)  If the franchiser and the franchisee have not agreed
14    to submit a dispute to arbitration, and the dispute  did  not
15    arise under paragraph (6) of subsection (d) or paragraph (6),
16    (8),  (10),  or  (11)  of subsection (e) of Section 4 of this
17    Act, then a proceeding for a remedy other than damages may be
18     commenced by the objecting franchisee in the  circuit  court
19    of  the  county  in  which  the  objecting franchisee has its
20    principal place of business, within 60 days of the  date  the
21    franchisee  received  notice  in writing by the franchiser of
22    its determination under any provision of this Act other  than
23    paragraph  (6) of subsection (d) or paragraph (6), (8), (10),
24    or (11) of subsection (e) of Section 4 of this Act;  however,
25    if  notice of the provision under which the determination has
26    been made is not given by the franchiser, then the proceeding
27    shall be commenced as provided by Section 14 of this Act.
28        (f)  The changes to this Section made by this  amendatory
29    Act  of the 92nd General Assembly (i) apply only to causes of
30    action accruing on or after its effective date and  (ii)  are
31    intended  to  provide  only  an  additional venue for dispute
32    resolution without changing any substantive rights under this
33    Act.
34    (Source: P.A. 92-272, eff. 1-1-02.)
 
                            -35-     LRB093 02456 NHT 02466 b
 1        Section 999.  Effective date.  This Act takes  effect  on
 2    January 1, 2004.