Arbitration agreements, whether they are separate or part of a larger agreement, are contracts – an enforceable set of promises between parties. Like any other contract, arbitration agreements are subject to the same defenses that may be used to invalidate a purported contract. Such defenses may include:
- Mistake (Mutual or Unilateral);
- Duress or Undue Influence;
- Lack of Capacity;
- Unconscionability;
- Misrepresentation or Fraud;
- Impossibility or Impracticability (yes, there is a difference);
- Material Breach (after formation);
- No Consideration; and
- Several Others.
There are no special defenses to arbitration agreements. The U.S. Supreme Court has recently affirmed this rule under the Federal Arbitration Act.
If you think you may have agreed to arbitrate a dispute, don’t try anything special or unique to attack the arbitration agreement or provision. Stick with the tried and true contractual defenses.
Better yet . . . stick with arbitration, it may be better for you.
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?
Forum Selection Can Be a Home-Court Advantage
I promise that any disputes between us will be argued at your house. Time passes and a dispute begins to brew. Now, I want to argue at my house, not at yours. You pay costs to argue at my house that you wouldn’t have incurred had I done as agreed. Should I have to reimburse your costs?
No-Damage-for-Delay and Owner-Related Dispute Clauses are No Defense to Surety Liability Under Miller Act
Prime Government Contractors - you may need to update your interim payment waivers.
Contractual Fairness is Whatever the Parties’ Agreed
When you know a current action or inaction is wrong, but you do not object, should you be allowed to object later?
Which Comes First – Specifications or Drawings?
Sometimes it's not better to ask for forgiveness after-the-fact.
Government Contract Claims: When Appeal is Rejection of Settlement
Without a reservation of rights, appealing a Contracting Officer’s Final Decision is a rejection of any offer of payment or settlement included therein. So, the contractor had only three options.
Linking Obligations
If you want to bind the subcontractor to the prime in every way the same as the prime is bound to the owner, then the incorporation clause of the subcontract should be: . . .
Termination of Government Contracts for Convenience (T4C)
Imagine you’re a Government Contractor under a firm, fixed-price contract and you’ve done nothing wrong. Nevertheless, the Government has decided to unilaterally end its contract with you. Yes, the Government can do this...
