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Zach concentrates his practice in construction-related disputes and specializes in complex domestic and international arbitration proceedings. He has advised clients on nearly every continent in connection with projects in the United States, Africa, the Middle East, and Latin America. Zach has represented owners, EPC contractors, and equipment manufacturers in disputes arising from a wide variety of construction projects including power plants, airports, commercial buildings, and other civil infrastructure works.

Over the past decade, international arbitration has played an increasingly prominent role in the construction industry.  As contractors and owners pursue greater opportunities outside their domestic jurisdictions, international arbitration has provided parties with a reliable, flexible, and neutral forum to resolve disputes.  Indeed, a quick glance at the most recent statistics from any number of the leading international arbitral institutions, such as the International Chamber of Commerce and International Centre for Dispute Resolution, shows that construction arbitration accounts for one of the largest components of the institutions’ caseload.

Continue Reading International Arbitration and the Construction Industry: An Introduction to the Field of International Arbitration on October 11, 2019

BML Properties Ltd. v. China Construction America Inc., et al., 101 N.Y.S. 3d 597 (N.Y. App. Div. 2019)

On July 2, 2019, a New York appellate court upheld a lower court ruling by Justice Saliann Scarpulla, denying a state-backed Chinese contractor’s attempt to compel international arbitration arising out of a dispute involving the construction of the multibillion Baha Mar mega-resort in the Bahamas.  As a result of the ruling in BML Properties Ltd. v. China Construction America Inc., et al., 101 N.Y.S. 3d 597 (N.Y. App. Div. 2019), aff’ing No. 657550/2017 (N.Y. Sup. Ct. Jan. 24, 2019), the $2.25 billion lawsuit alleging “one of the largest construction-based frauds in this hemisphere” will remain in the New York courts.  As explained below, for those in the international construction industry, the case will be worth following.

Continue Reading New York Appellate Court Affirms Decision to Deny Motion to Compel Arbitration in Multi-Billion Dollar Construction Dispute

As many owners and contractors involved in the international construction industry are aware, international arbitration is a popular dispute resolution device for international construction disputes because, in part, international arbitration awards are, broadly speaking, enforceable in practically every jurisdiction in the world. This facet of international arbitration has been set out in the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) — a multilateral convention that requires the courts of the contracting states to recognize and enforce arbitration awards made by tribunals seated in other contracting states. Now, with 160 signatory states and the increasing popularity of international arbitration around the world, the New York Convention is widely viewed as one of the most successful international conventions ever.

Continue Reading New Conventions, New Problems?: A Pair of Recently Announced International Conventions Aim to Replicate the Success of the New York Convention

Popple Construction, Inc. v. Reilly Associates, Inc. No. 775-MDA-2017, 2019 BL 213236 (Pa. Sup. Ct., June 10, 2019).

On June 10, 2019, the Superior Court of Pennsylvania affirmed a lower court decision to deny a motion to dismiss in connection with a tort claim for negligent misrepresentation by a contractor against a third-party design/engineer.  The Court’s opinion highlights Pennsylvania’s exception to the economic loss doctrine insofar as it applies to claims raised by contractors against architects/engineers for faulty bidding documents, specifications, or designs.

Continue Reading Pennsylvania’s Exception to the Economic Loss Doctrine Appears Alive and Well: Appellate Court Permits Contractor to Pursue Negligent Misrepresentation Claim Against Design Professional

Published in The Construction Lawyer, Volume 39, Number 1 Winter 2019. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent

Pepper Hamilton attorneys Albert Bates and R. Zachary Torres-Fowler contributed the United States Construction Arbitration chapter to the Global Arbitration Review (GAR) Know-How series. Launched in 2006, GAR is a leading resource on international arbitration news and community intelligence.

The GAR Know-How series — an online Q&A resource that provides practitioners with guides on various

As discussed in our post from last year, on August 30, 2018, the Eleventh Circuit Court of Appeals reversed a lower court decision to compel arbitration between an Alabama steel plant owner, Outokumpu Stainless USA, LLC (“OS”), and a French division of General Electric Co, GE Energy Power Conversion France SAS (formerly Converteam SAS). In so ruling, the Eleventh Circuit held that a non-signatory to a contract could not compel arbitration under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), as incorporated in Chapter 2 of the Federal Arbitration Act (“FAA”), through the doctrine of equitable estoppel. Dissatisfied with the Eleventh Circuit’s decision, on February 7, 2019, GE filed a petition for a writ of certiorari with the Supreme Court of the United States to review the Eleventh Circuit’s decision and on June 28, 2019, the Court granted the GE’s petition.  In the field of international construction arbitration, where multi-party disputes between owners, contractors, and subcontractors are common and where the rights of non-signatories to compel arbitration are regularly debated, the Supreme Court is slated to provide important guidance.
Continue Reading UPDATE: GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC: U.S. Supreme Court Grants Writ of Certiorari to Decide the Question of Whether the New York Convention Permits Non-Signatories to Compel Arbitration Under the Doctrine of Equitable Estoppel

On June 12, 2019, the World Bank announced that China-based Dongfang Electronics Co. Ltd. (“Dongfang”) would be debarred for fifteen (15) months for fraudulently bidding on a $60 million electrical expansion project in Liberia.  The debarment renders Dongfang, a state-owned enterprise specializing in manufacturing and installing electrical equipment in connection with energy and infrastructure projects, ineligible to participate in any projects financed by the World Bank.  Dongfang’s debarment by the World Bank highlights the compliance risks contractors and subcontractors face when pursuing contracts associated with foreign projects financed by institutions such as the World Bank.
Continue Reading World Bank Debars Chinese Engineering Company for Fraudulent Bidding Practices in Connection With Liberian Infrastructure Project

Winger Contr. Co. v. Cargill, Inc., No. 17-1169, 2019 BL 132092 (Iowa Apr. 12, 2019).

On April 12, 2019, the Iowa Supreme Court affirmed a lower court ruling which held that, inter alia, the Iowa mechanic’s lien statute would not permit the attachment of mechanic’s liens to the property of a lessor in connection with a contract to supply materials and labor to a lessee.

Continue Reading The Lessor of Two Evils: Iowa Supreme Court Holds That Mechanic’s Liens Will Not Attach to the Property of a Lessor for Work Authorized by a Lessee

United States ex rel. Am. Civ. Constr., LLC v. Hirani Eng’g & Land Surveying, P.C., 2018 U.S. Dist. LEXIS 200829 (D.D.C. Nov 28, 2018).

The case involved the construction of a levee wall on the National Mall in Washington, D.C.  In September 2010, the Army Corps of Engineers awarded Hirani Engineering & Land Surveying, P.C. (“Hirani”) the prime contract for the project.  Hirani’s surety was Colonial Surety Company (“Colonial”).  Hirani subcontracted the majority of the work to American Civil Construction, LLC (“ACC”).  Following a series of disputes and project delays, the Army Corps terminated Hirani.  ACC then filed suit in the United States District Court for the District of Columbia seeking over $2 million in damages under the Miller Act as well as state law for breach of contract.  After a bench trial, the court entered judgment in favor of ACC.

As part of its claim, ACC sought damages for costs related to idle equipment at the project site.  Although the claim was only a small part of ACC’s overall claim, the court’s approach was noteworthy.  ACC asserted that all of the costs were recoverable under the Miller Act.  Conversely, Hirani and Colonial argued that standby equipment expenses were per se unavailable under the Act.  The court disagreed with both parties and held that, although the Miller Act permitted a contractor to recover for idle equipment, it could not do so in all instances.
Continue Reading Federal Court Clarifies When Idle Equipment Costs Are Recoverable Under the Miller Act