VOLUME 2   ISSUE 21   MAY 24, 2013


By Bruce Jervis


Public policy and the courts favor the use of binding arbitration for the resolution of disputes. Once parties have contractually committed to that forum, they should assume the result will be final. There are only limited grounds for judicial intervention. But one basis for vacating an arbitration award is instructive.


If an arbitrator displays “manifest disregard for the law,” the arbitrator has exceeded his or her authority and the award may be vacated. A manifest disregard occurs when the arbitrator is aware of a clear, well-defined legal principle and refuses to apply it. This was the case in a recent South Carolina dispute. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Arbitrator Showed Manifest Disregard for the Law
  • Supplier Recovers Payment Despite Apparent Deviation from Shop Drawings
  • Proposal Properly Excluded Even if Susceptible to Correction


By Steve Rizer


Savoring a victory that a federal appeals court delivered earlier this month when it invalidated the National Labor Relations Board’s (NLRB) “notification of employee rights” notice posting rule, Associated Builders and Contractors (ABC) Vice President of Federal Affairs Geoff Burr proclaimed that his organization “will continue to fight NLRB’s politically motivated policies that threaten to paralyze the construction industry in order to benefit the special interests of politically powerful unions.”


Such a threat exists because “the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law,” according to the association, which represents roughly 23,000 merit shop contractors, subcontractors, materials suppliers, and construction-related firms. ABC pointed to the posting rule, which the U.S. Court of Appeals for the District of Columbia Circuit addressed in National Association of Manufacturers [NAM], et al., v. National Labor Relations Board, et. al. (No. 12-5068), as “the perfect example” of such abandonment. ... Read more.


By Steve Rizer


What are the key defenses against “inadequate scheduling,” a “game” that is intended to instill confusion or hide time-related issues? During a recent discussion of various games and defenses relating to baseline schedules -- as-planned schedules that typically are submitted by contractors soon after a notice to proceed is issued -- Navigant Consulting Inc. Managing Director Stephen Pitaniello provided several suggestions for addressing schedules whose lack of detail makes them inadequate. Click here to read what he said on this topic during “Construction Scheduling Games People Play -- Revisited,” a three-part webinar series sponsored by WPL Publishing that collectively identified more than 15 scheduling games and offered more than 45 recommended defenses against such gamesmanship.






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