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 | Confusing Waters
CONFUSING WATERS | A Supreme Court ruling leaves room for ambiguity
What happens when there may be a “significant nexus” between “adjacent” and/or […]
Roads & Bridges | Authority Defined
AUTHORITY DEFINED | The Law of Agency is Important to Understand
For any project, this Russian proverb is helpful: Doveryay, no proveryay – […]
Jurisdiction is Power
Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). […]
Roads & Bridges | Defining Labor
DEFINING LABOR | How the Miller Act continues to shape the industry
In the late 1700s, risks of nonpayment caused a shortage of […]
Roads & Bridges | Mediation Melee
MEDIATION MELEE| An arbitration case can be costly
Arbitration can be a bridge over troubled waters. In this crossing, the parties argued over […]
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 […]
Jonathan J. Straw
Blog Author
Contact Jonathan
Partner | KraftsonCaudle.com
Download Jon’s Bio
