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.
One-Sided Construction Arbitration Clause Valid in Virginia
When it’s time to butt heads, know how the local turf (court) will interpret the clause.
Manage the Risk of Construction Changes
Almost any problem on a construction project can be traced to one of two things: changes or delays (even delays are really just changes). As in life, embrace and manage the change don’t run from it.
Want Your Profit? Prove a Constructive Change, Not a Suspension of Work.
What’s the Difference Between a Suspension of Work and a Constructive Change? For federal contractors, there are two main differences: . . .
No Special Defenses to Arbitration Agreements
Arbitration agreements, whether they are separate or part of a larger agreement, are contracts – an enforceable set of promises between parties. […]
How to Find (and Confirm) the Plain Meaning in a Contract
Contract formation confirms the parties understand and agree to all the essential terms. When that understanding and agreement fades, how do you […]
Navigating the Requirements for Claims against Virginia Public Entities
Contractors making claims against Virginia public entities must follow ALL applicable requirements. Such requirements may be found in several places, so check […]
Virginia General Contractors Not Protected from Pre-Work Claim Waivers
On March 2, 2018, the Governor approved an act of the Virginia General Assembly to make unenforceable pre-work waivers of lien rights […]
Adding Terms to a Government Contract without Saying So
Imagine an incredulous Contractor asking, “Show me in the Contract where it says I’m supposed to do X?” The Government Contracting Officer smugly answers, “even though the Contract doesn’t say so, you must do it anyway.” Is that even possible, when, how?
Differing Site Conditions: When the Part Does Not Equal the Whole
If all apples are fruit, then why are all fruit not apples?
