(A) To the extent provided by any agreement made or adopted by the participant and to the extent provided by any collective bargaining agreement that covers the participant, for any claim, controversy, disagreement of any kind or dispute of any kind, whether based on statute or public law, or private law, contract, quasi-contract, tort, trust, fiduciary duty, special relationship or any theory at law or in equity (including, but not limited to and without limitation by enumeration, any claim of fraud, estoppel, misrepresentation, fraudulent or negligent inducement, duress), arising out of or related to this plan (for the purposes of this section referred to as a “dispute”), if the dispute is not resolved under this plan’s claims procedures (including any reconsideration, rehearing and appeal procedures provided by the plan or otherwise made available by the Plan Administrator), the claimant shall present the claim under the agreed dispute resolution and arbitration procedure (for the purposes of this section referred to as the “procedure”).
(B) Notwithstanding anything to the contrary in the procedure or otherwise, the arbitrator shall not have any power to order or instruct discovery of any document or other information that is protected by attorney-client privilege, attorney work product privilege, self-evaluative or self-critical analysis privilege or any similar evidentiary privilege under any applicable law or under any rules of professional conduct that apply to any lawyer who prepared, delivered or received the document or information. The arbitrator shall not have any power to award any relief if the relief responds to a claim or dispute that would be precluded by the statute of limitations or statute of repose (as determined under § 35.047) if the claim or dispute were brought before the appropriate court (as determined under § 35.051). The arbitrator shall not have any power to award any kind of injunctive relief. The arbitrator shall not have any power to award any relief contrary to the plan or otherwise that would cause the plan to fail to qualify as an eligible deferred compensation plan within the meaning of I.R.C. § 457(b). Notwithstanding anything to the contrary in the procedure or otherwise, the arbitrator shall not have any power to award damages payable by a person other than an employer. In reaching his or her decision, the arbitrator shall have no power or authority to change or modify any provision of this plan, including, without limitation, any provision concerning limitations on or exculpation from liability or any provision concerning liquidated damages or any provision concerning the allocation of expenses, including, without limitation, litigation expenses or arbitration expenses. The plan shall be construed or interpreted solely according to the provisions of this plan (including §§ 35.080 through 35.088) and shall be governed by § 35.027. If any part of this section is otherwise held to be unenforceable, the rest of this section shall be construed and enforced as if such part(s) were not a provision of this plan, and the unenforceable part shall in no way affect any other duty to mediate or arbitrate or any other provision of this section or otherwise under this plan.
(Ord. NIRC 97-1, passed 1-15-1997)