Kluwer Construction Blog

The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules were adopted in 1976, and have been both broadly used and widely praised as simple and straightforward. Remarkably, in 34 years they have not been revised – until now. Revisions were finally approved this summer, and arbitration agreements concluded after August 15, 2010 and referring to the UNCITRAL Rules are presumed to refer to these revised rules, unless the parties otherwise agree. Given the length of time since they were first introduced, significant revisions might have been expected. But in testament to their basic soundness, many of the revisions are little more than tweaks.

The revisions se [...]

When an Owner comes after the Contractor for liquidated delay damages (LDs) after a project is completed late, the Contractor’s only substantive defense is to argue that the delay was excused by force majeure or Owner actions (naturally there may be procedural defenses, like timeliness). However, a recent decision by the United States Court of Federal Appeals for the Federal Circuit has erected a new requirement that the Contractor must first fulfill before it can assert its substantive defense. The decision in question is M. Maropakis Carpentry, Inc. v. United States, ___ F.3d ____, No. 2009-5024 (June 17, 2010). It holds that in order to dispute the basis for an LD assessment by the U [...]

The U.S. Supreme Court has been deciding cases regarding arbitration at (for them) a furious pace recently, and the latest decision (Rent-A-Center West, Inc. v. Jackson, 2010 WL 2471058 (June 21, 2010)) reconfirms the Court’s continued strong support for enforcing arbitration agreements as written, even where this deprives the courts of any significant role in determining threshold questions of arbitrability.

The Rent-A-Center decision is complex, and well illustrates the very fine distinctions being made in the U.S. law of arbitration, but which have the net effect of strengthening the arbitrators’ role at the expense of the courts. The underlying broader issue is whether it is for the [...]

With reason, non-Americans tend to be wide-eyed at the extent to which U.S courts require affirmative disclosure of potentially relevant documents and facts – and at the cost these discovery procedures routinely entail. One change just announced, however, represents a bit of retrenchment that will make handling construction disputes in U.S. Federal courts a bit less challenging. Specifically, a party will no longer need to disclose all communications with its retained expert witnesses, along with the experts’ draft reports, per a rule change scheduled to take effect on December 1, 2010.

Under current Rule 26 of the Federal Rules of Civil Procedure, all communications between legal cou [...]

On Monday, April 19, 2010, a federal judge in the Eastern District of Virginia handed down “the longest-ever prison sentence” for a Foreign Corrupt Practices Act (FCPA) violation. Charles Jumet was sentenced to 87 months in prison for conspiring to violate the FCPA and for making false statements to federal agents. Jumet, a vice president of Ports Engineering Consultants Corp. (PECC), pled guilty to paying over $200,000 in bribes to high-ranking Panamanian government officials between 1997 and 2003 in exchange for maritime contracts to maintain lighthouses and buoys along Panama’s waterways. (PECC’s president, John Warwick, also has pled guilty to the same conduct and is scheduled to [...]

When forced to litigate in the U.S., many businesses – especially multinational ones – prefer to be in federal rather than state court. The U.S. Supreme Court just made it a bit easier to fulfill that desire.

Most construction disputes are contract cases not involving federal law, so a federal court will only have jurisdiction if the suit involves more than $75,000 and is between citizens of different U.S. states. The key question is usually: where is a corporation a “citizen” for the purpose of determining whether such “diversity of citizenship” exists?

By statute, a corporation is a citizen of both the state (1) where it is incorporated, and (2) where it maintains its “pri [...]

The U.S. has been a staunch supporter of arbitration since 1925, when the U.S. Arbitration Act became law. The Arbitration Act makes arbitration agreements binding and simple to enforce, without significant exception. Rather suddenly, a substantial backlash against mandatory arbitration has appeared on the scene. One of the clearest indicators is the proposed Arbitration Fairness Act (H.R. 1020) that was introduced in the House of Representatives in February of 2009, and is still very much in play. While the anger is not directed at construction dispute arbitration, the concern is that commercial arbitration will end up being limited in important ways, as well as mandatory arbitration sc [...]

Non-U.S. companies frequently ask whether they are eligible to compete for U.S. Government construction and renovation projects, whether within the U.S. or on U.S.-owned facilities abroad. The answer is a simple “yes” in the great majority of cases, unless the project requires access to secure or classified information. Much of the work on U.S. Embassies, for example, requires such access (and some is restricted to only U.S. firms). To work on a secure/classified project, the contractor must possess an Industrial Facility Clearance (FCL), issued in accordance with the National Industrial Security Program Operating Manual (NISPOM). So let’s consider the requirements for that.

To b [...]

The principal weapon of the U.S. government to combat corruption in international business dealings is the Foreign Corrupt Practices Act (FCPA). To say that the U.S. is now aggressively pursuing FCPA cases is an understatement. In the past year, we have seen billions of dollars of fines, sting operations, and the pursuit of individuals around the world. Here are some of the latest FCPA headlines:

The spreading trend toward “green” building has resulted in a number of competing and overlapping certification systems, with only faint hope in sight of better standardization. United States builders are most familiar with the LEED system sponsored by the United States Green Building Council (USGBC). Through USGBC’s association with the World Green Building Council, LEED is now available in almost 60 countries, spanning the globe from Malaysia to Morocco.
Starting in 1996, Canada’s Building Research Establishment developed its Environmental Assessment Method. This then evolved into an online assessment and rating tool owned by BOMA Canada, known as Green Globes. BOMA Canada then [...]