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
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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