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#135:  Unconscionable Arbitration Agreements

NH Construction Law

“An agreement to arbitrate may be unenforceable if pursuing a claim in arbitration is so cost prohibitive that it prevents a party from vindicating its rights.” ” He pointed to the AAA’s Administrative Fee Schedules, under which it would cost him over $8,000 to present his case to the arbitrator.

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Not So Severable After All: Third Circuit Lets Courts Determine Arbitration Agreement Existence When Underlying Contract’s Validity Is Challenged

Constructlaw

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. After the project began, a labor union representative approached and asked MZM’s president to execute a “short-form agreement.”

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Bargaining Room v. False Claims: 5 Tips for Negotiation of Construction Claims

Best Practices Construction Law

Earlier this week, a settlement was reached in dispute where the contractor and designer were alleged to have filed false claims with the U.S. The issue raises an important question: What should a contractor do during negotiations to allow for some “bargaining room” so as to avoid any appearance of filing a false claim?

Claims 69
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Severin Doctrine: It's Another Name for "Pass-Through-Plus" Claims

Best Practices Construction Law

The claims were made by the contractor on its own behalf, as well as on the behalf of its subcontractor. The claim was presented by the contractor to the DOT. There is a reason why I call the Severin doctrine a pass-through-plus claim. A well drafted liquidation agreement will generally accomplish this purpose.

Claims 48
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Contracts Must Be Clear on "Arbitrability" Question, Especially for $56M Claims

Best Practices Construction Law

Just like any other construction contract dispute, the resolution in arbitration often comes down to the language used in the parties'' agreement. The Original Agreement. The Second Agreement. Those claims were identified in Exhibit 1 to the agreement. In Massachusetts Highway Dept. Perini Corporation, 83 Mass.

Claims 48
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Twists and Turbines — A New York Case Highlights an Owner’s Risk When Not Using Full-Wrap EPC Delivery

Constructlaw

The New York Supreme Court (New York’s trial court) dispatched all of the owner’s claims on summary judgment. The designer, which had specified the wrong type of turbine, invoked New York’s three-year statute of limitations to defeat the owner’s professional negligence claim.

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Common Law Analysis – Pay-if-paid, Pay-when-paid & Liquidating Agreements in Construction Contracts

Construction Law Monitor

Liquidating Agreement. Another technical term that is not often discussed in construction, yet is present in many construction contracts is the mechanism know as a “liquidating agreement” Sloan pg 16. Do not confuse a liquidating agreement with liquidated damages. Sloan pg 17. See Carl A. Calvert & Carl F.