How does a pirate solve a dispute (besides walking the plank)? Answer: Arrrrbitration!
The pros and cons of arbitration are discussed in a separate post. This post concerns the waiver of arbitration by progressing too far with litigation. How far is too far? Generally, it’s too far when the party refusing to arbitrate has been harmed (e.g., too much cost incurred) by the litigation.
If you’re sued by someone else, can you demand arbitration? If you’re suing someone else, can you later demand arbitration? The answers depend on:
- Does your construction contract have an arbitration provision?
- How far has the litigation gone before someone demands arbitration?
Even when a defendant waited 22 months after being sued to demand arbitration, the Court found the defendant had not waived its right to arbitration, in part because it had not (for nearly two years) actively involved the plaintiff or the court and so avoided causing too much harm to the other party.
But, don’t wait too long! You’ll save time and money by deciding and acting sooner rather than later whether to arbitrate.
Roads & Bridges
Where Does the Buck Stop?
Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for subcontracts created on/after 1/1/23.
Also for subcontracts created on/after 1/1/23, the prime must specifically […]
How Short is Too Short
A limitations period is too short when it’s unreasonably short.
Construction Contracting Without Relief Clauses During COVID-19
What to do if your contract lacks the parts to handle COVID-19? Considerations for creating new contracts during COVID-19.
Your Contract Can Handle COVID-19
Uncertainty and risk are not new or novel to contractors. Contracts reduce uncertainty and share the risk of doing or providing something. COVID-19 may have contributed to, but it has not single-handedly created, uncertainty and risk.
Contractors Can Use RFI to Notify the Government
The Board (and the government) should not elevate form over substance in evaluating the sufficiency of a contractor’s notice.
Taxes Due!
It’s tax season again, so it’s time to pay the piper.
Contractor Wins when Government Reconsiders Accord
Ever had buyer’s remorse or second-guessed a decision? When the U.S. Army Corps of Engineers did that, a Contractor won its claim for time and money.
On a flood control project near Nogales, Arizona, severe flooding […]
Claim Certified with Digital Signature Deemed OK
The law is not a trend-setter. It doesn’t readily change or adapt to tech. So, a commonplace practice in business became a dispute when a claimant digitally certified a claim under the Contract Disputes Act.
Jonathan J. Straw
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