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, 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.
On August 5, 2020, Governor Brian Kemp signed Georgia Senate Bill 315 into law. This new law, which is codified at Title 44, Chapter 14, Section 366 of the Official Code of Georgia Annotated, substantially changes the way Georgia interprets statutory interim and final lien waivers. Continue Reading Change in Georgia Lien Law
Zachary Torres-Fowler and Cindy J. Lee were published in the American Bar Association’s Forum on Construction Law (Summer 2020) with their article, “What the United States-Mexico-Canada Agreement Means for International Construction Disputes.”
In the July 2020 edition of Mealey’s International Arbitration Report, Albert Bates Jr., a partner in Troutman Pepper’s Pittsburgh office and head of the firm’s International Construction Projects Practice, offers his thoughts on developments in the field of international arbitration and the question of whether practitioners expect parties to continue to utilize the traditional international arbitration seats (e.g., London, Paris, Singapore, New York) or shift toward new jurisdictions. As Mr. Bates explains in this piece, with some minor exceptions, it appears unlikely that international arbitration users will trend away from the traditional international arbitration seats and that the United States will remain an important hub for international arbitration.
On June 8, 2020, Level 10 Construction, LP (“Level 10”), a construction company hired by Sea World San Diego (“Sea World”), filed a Complaint in California federal court alleging that Sea World is withholding over $3.2 million dollars in payments from Level 10. In the Complaint, Level 10 alleged that Sea World has declined to issue payments until the Sea World park reopens. Sea World has remained closed since March 2020 due to COVID-19. Continue Reading Level 10 Construction v. Sea World LLC: Can Force Majeure Save Sea World?
This article was originally published in Government Construction (Volume 5, Issue 2 – Summer 2020), an ABA Division 13 Quarterly Newsletter. It is republished here with permission.
The United States Civilian Board of Contract Appeals (the “Board”) recently issued a decision that may be particularly pertinent in light of the COVID-19 pandemic. In Pernix Serka Joint Venture v. Department of State,1 the Board rejected a contractor’s claim for additional costs related to demobilization and remobilization of the job site in Freetown, Sierra Leone, due to an Ebola virus outbreak. The Pernix decision should put government contractors on notice that, depending on applicable contract language, federal contractors may be entitled to schedule relief, but not costs, as contractors deal with COVID-19 related impacts. Continue Reading CBCA Offers Potential Insight Into How Board Will Handle Claims Related to COVID-19
Published in Dispute Resolution Journal (June 2020, Vol. 74, No. 3), the flagship publication of the American Arbitration Association. © 2020, American Arbitration Association. It is reprinted here with permission.
“There is a deceptive simplicity about the way in which arbitral proceedings are conducted… In fact, the appearance conceals the reality.”
Arbitration is simple. Parties select a person or persons — the arbitrator(s) — whose expertise or judgment they trust to resolve their differences in a privatized forum. After each party puts on their case, the arbitrator(s) consider the arguments and evidence and renders a binding decision. Continue Reading Internationalizing Domestic Arbitration: How International Arbitration Practices Can Improve Domestic Construction Arbitration