Our Experience

Arbitration

The Enforceability of Prehearing Arbitration Subpoenas

by | 23 January 2018 | ,

The enforceability of prehearing arbitration subpoenas after CVS Health Corporation, et al vs. Vividus, LLC, fka HM Compounding Services, LLC

By Stephen A. Hilger, Esq.

This is Part 4 in a 20-part series of articles dealing with issues of arbitration, mediation and alternate dispute resolution in the construction industry.

Those who have participated in arbitration proceedings understand the difficulty of getting documents from non-parties. For example, in a Contractor – Subcontractor dispute, litigants may want documents from the owner, architect, testing lab, and the like. However, those non-parties may not be connected to the Contractor – Subcontractor arbitration agreement. The litigants can require or request that the arbitrators issue subpoenas, which arbitrators typically do, but what happens when the third-party simply refuses to comply?

Should You Make Meetings of CEOs a Condition to Arbitration?

by | 11 December 2017 | , ,

This is Part 3 in a 20-part series of articles dealing with issues of arbitration, mediation and alternate dispute resolution in the construction industry.

Over the last decade, a requirement has slipped into the dispute resolution clauses of many construction contracts requiring the CEOs of the various parties to meet as a condition precedent to any arbitration. If something is a “condition precedent” and the contract uses those specific terms, then the meeting must occur before a party can either demand arbitration or file litigation.

Since the parties negotiate their contract, the question becomes whether this is a prudent requirement to place in the contract. The answer is, in most instances, yes. Often times, the parties’ representatives who are involved in the dispute are not the CEOs of the companies. The CEOs, generally speaking, have cooler heads when it comes to resolving heated disputes. They may be one step removed. Forcing the CEOs to meet and discuss the claim has a general influence on either resolving the disputes or substantially narrowing them.

Language You Need for an Enforceable Arbitration Clause

by | 14 August 2017 | ,

This is Part 2 in a 20-part series of articles dealing with issues of arbitration in the construction industry. 

Arbitration is voluntary
Absent a statute to the contrary, arbitration is a voluntary, contractual process. A court will not require parties to arbitrate complex construction disputes without an enforceable arbitration clause in their contract. If you do not have an enforceable arbitration clause, you will not be able to compel your adversary to arbitrate, nor can your adversary force you to arbitrate unless you jointly negotiate a separate post-contract arbitration agreement.

So how do you get to an enforceable arbitration clause? You need to include specific buzzwords in your contract.