Yes, the word “pirates” is an anagram for “parties.” Participants in a lawsuit, arbitration, or mediation are collectively referred to as parties. Are they pirates too?
Unless agreed otherwise, a judge (not an arbitrator) will interpret the scope and meaning of the arbitration provision in your construction contract. Any such agreement must be supported by “clear and unmistakable evidence.” Such evidence may include the incorporation by reference of rules governing the arbitration process, such as JAMS, AAA, UNCITRAL, or ICC.
In December 2017, the 4th Circuit (including Virginia, West Virginia, Maryland, North Carolina, and South Carolina) joined the 1st, 5th, 8th, 9th, 10th, and D.C. Circuits (comprising 21 other jurisdictions of the U.S.) on this point. A majority of the U.S. Federal Courts now agree on this point.
When negotiating or drafting your construction contract, consider incorporating such rules so ancillary questions (a.k.a., expensive, non-substantive issues) can be resolved more efficiently by an arbitrator without having to separately get a judge’s decision.
Simply Wireless, Inc. v. T-Mobile U.S.A., Inc., Nos. 16-1123 and 16-1166, U.S. Ct. Appeals, Fourth Circuit (Dec. 13, 2017).
Roads & Bridges | Written Notice
WRITTEN NOTICE | Beware that strict compliance of the contract might be required.
When an owner replaced a contractor for significant safety violations, […]
Roads & Bridges | Mommie Dearest
MOMMY DEAREST | The story of an ESA without a MOM
Nobody enters this world, or a contract, without a mother: There can […]
IIJA | Does Closing a “Giant Loophole” Cost Contractors?
A recent article published by Roads and Bridges magazine reports that the Office of Management and Budget is working to broaden the scope […]
Roads & Bridges | Buy American Plan Gets an Update
BUY AMERICAN PLAN GETS AN UPDATE
The Office of Management and Budget is developing standards to replace the current Buy […]
Roads & Bridges
Where Does the Buck Stop?
WHERE DOES THE BUCK STOP? | A shallow concrete pour leads to an interesting lawsuit
On the desk of President Harry S. Truman […]
Roads & Bridges | Reshaping Agreements
RESHAPING AGREEMENTS | Oral Agreements Must Be Written in Stone
Reuse, reshaping, and/or reapplication of existing materials was the goal in this roadway […]
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 […]
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.
Jonathan J. Straw
Partner | KraftsonCaudle.com
Download Jon’s Bio