The Army Corps of Engineers denied a construction permit for Alaska’s Pebble Mine project to proceed in accordance with the Clean Water Act (CWA).[1] Excavation of Pebble Mine — a sprawling depository of gold, copper, and molybdenum — would discharge fill material and dredge into U.S. waterways.

The project’s developers applied for a permit under the CWA, requiring the Army Corps to assess the project’s potential impact on nearby bodies of water. When project-produced dredge and fill threaten unavoidable adverse impacts on waterways, projects may not proceed without appropriate mitigation measures. Continue Reading Another Major Project Halted Under the Clean Water Act

Mealey’s International Arbitration Report – Nov. 2020
[Editor’s Note: Copyright # 2020, LexisNexis. All rights reserved.]
Commentary by Troutman Pepper Partner Albert Bates, Jr.

Mealey’s International Arbitration Report recently asked industry experts and leaders for their thoughts on what events had an impact on global economy that have led to an increase in filings. We would like to thank the following individuals for sharing their thoughts on this important issue.

  • Sarah Reynolds, Partner, Mayer Brown, Chicago
  • Peter A. Halprin, Partner, Pasich LLP, New York
  • Helen Conybeare Williams, Counsel & Solici­tor Advocate, Haynes and Boone LLP, London
  • Sandra Smith Thayer, Partner, Pasich LLP, Los Angeles
  • Lisa Houssiere, Principal, McKool Smith, Houston
  • Gene Burd, Partner, FisherBroyles, Washington
  • Albert Bates Jr., Partner, Troutman Pepper, Pittsburgh
  • Charlie Lightfoot, Co-chair of International Arbitration Practices and Managing Partner, Jenner & Block, London
  • Thomas Wingfield, Associate, Jenner & Block, London. Continue Reading International Arbitration Experts Discuss The Impact On The Global Economy

As published in Dispute Resolution Magazine, Volume 26, Issue 3, September 2020.

Imagine a complicated engineering and construction project that has lasted years and has already cost hundreds of millions of dollars. During the project, the contractor submitted dozens of claims for additional time and money – all of which the project’s owner has rejected. Amid mounting costs, claims from various subcontractors and suppliers boiling to the surface, and the threat of liquidated damages or even termination of the project, the contractor proceeds without receiving any relief from the owner. Although the parties have tried to resolve their disputes through negotiation and even mediation, they have not been able to reach an acceptable settlement. The contractor says it has incurred significant costs to perform the work and feels it is essentially funding the owner’s changes to the project. The owner, however, says the disputed issues are the contractor’s, not the owner’s risk. Accordingly, without a dispute resolution mechanism in place to resolve these disputes in real time, the costs continue to mount, and the prospect of a lengthy, expensive, and protracted arbitration or litigation looms. Continue Reading Dispute Boards: An Approach to the Efficient Resolution of Disputes in the Construction Sector

Gov. Wolf’s businesses closure orders and the business waiver process recently came under fire from the Western District of Pennsylvania Federal Court and the Pennsylvania Auditor General Eugene DePasquale. Gov. Wolf’s prior orders forced nearly all activities of the construction industry to cease in-person operations. Continue Reading Governor Wolf’s Life-Sustaining Business Orders and Waiver Process Under Fire

Updated October 27, 2020

On August 6, President Trump issued an executive order banning WeChat, a Chinese app developed by parent company Tencent Holdings Ltd. that combines the capabilities of other social media, ride sharing, and payment apps. The ban could potentially affect all forms of businesses, including global construction, manufacturers, and equipment suppliers performing business in China and the U.S. WeChat, with its over one billion users, is indispensable to some businesses, especially to those in China because mobile payment apps like WeChat reign supreme over other payment forms, and WeChat is now used as a primary means to communicate. Continue Reading The WeChat Ban: Where We Are Now and How May It Impact International Construction, Manufacturers, and Equipment Suppliers

On September 14, the U.S. Court of Appeals for the Third Circuit addressed the perennially thorny issue of whether the courts or arbitrators retain the authority to resolve questions involving the enforceability of arbitration agreements. In MZM Construction Company, Inc. v. New Jersey Building Laborers Statewide Benefits Funds,[1] the Third Circuit held that the courts must decide questions of arbitrability in cases where a party challenges the validity of the underlying contract that contains the arbitration agreement — even when the putative arbitration agreement refers these questions to the arbitrators. The court’s decision highlights the complexities associated with the enforcement of arbitration clauses and the limits to a party’s ability to compel arbitration. Continue Reading Not So Severable After All: Third Circuit Lets Courts Determine Arbitration Agreement Existence When Underlying Contract’s Validity Is Challenged

When is it going to return to “normal”? We all have been asking that question. Well, for the construction industry, it may never return to “normal.” COVID-19 may have permanently changed the landscape of the construction industry in many ways. Depending on your perspective, many changes could be for the better. We may have to alter how we do business to address some new issues and business concerns. Here are just a few issues that the pandemic has brought to the forefront of our industry. Continue Reading Subtle (and Not So Subtle) Effects of COVID-19 on the Construction Industry

Albert Bates and R. Zachary Torres-Fowler were published in gar insight with their article, “GAR Know How Construction Arbitration.”

This chapter summarizes issues commonly raised during international construction arbitrations seated in the United States or governed by U.S. laws. This chapter should be a useful resource for those seeking to better understand the interplay between U.S. laws and international construction arbitration.

Albert Bates, Jr. and Danielle J. Volpe were published in Mealey’s International Arbitration Report with their article, “Zooming Ahead: Challenges and Considerations for Virtual International Arbitration Proceedings in the Wake of COVID-19 Pandemic.”

Danielle Volpe is a former associate of Troutman Pepper who recently became the General Counsel of Posillico Construction.