April 9, 2008
This proposal represents a slight improvement to a deplorable situation.
The NASD did not develop or formulate its rules governing arbitration.Rather,the Securities Industry Conference on Arbitration(SICA)developed and formulated them in 1977,Implementation of an Investor Dispute Resolution System,Exchange Act Release No.134701977-1978 Transfer BinderFed.Sec. L.Rep.(CCH)para.81,136 at 87,905(April 26,1977).The "six year language" was first adopted by SICA in 1977,BEFORE arbitration was included in broker dealer opening documents.It was alomost 10 years later before the Supreme Court in the McMahon case accepted the concept of mandatory arbitration.In 1977,arbitration was a VOLUNTARY alternative to seeking redress in court.The six year eligibility rule was adopted by the SICA committee to deal with the administrative process for those who VOLUNTARILY chose arbitration rather than seek a judicial remedy.Therefore,it was made clear that the six year eligibility rule could not be used to extend an "applicable" SOL if the aggrieved party CHOSE to file a lawsuit rather than to arbitrate.The "not used to extend" language only applied to those seeking to move FROM arbitration to the courts and was never intended to be used to impose the SOL on an aggrieved party seeking redress in arbitration.
SICA is not a legislative or regulatory body.Its primary purpose is to assist SROs as a neutral source in developing rules for arbitration.The most compelling opinion of the intent of the drafters comes from the published remarks of Prof. Constantine Katsoris one of the original drafters and still a member of SICA.
It is clear from Prof. Katsoris'writings that if a claimant has VOLUNTARILY chosen arbitration,then the six year eligibility rule applies.It is equally clear that if a claimant VOLUNTARILY chose a judicial remedy in a state court,that the local SOC would apply.
This proposal ignores the injustice of distorting the original intent of the framers to the detriment of claimants.However,I support the measure as a weak improvement to what should be recognized as an unacceptable situation.