Chapter Seventeen: Unique Issues in Construction Arbitration - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor A. Holt Gwyn is recognized in the United States and Latin America for his arbitration and mediation practice. His ADR practice complements his legal practice, which is concentrated in construction, environmental, and business contracts and disputes. Mr. Gwyn has coauthored several books and is the author of more than two dozen articles on construction and environmental topics and on resolution of disputes by arbitration and mediation.
Mr. Gwyn has served as Chair of the world’s largest organization of construction lawyers, the ABA’s Forum on Construction Law. In 2014, he received the Forum’s highest achievement “Cornerstone” award. He is a Fellow and in 2016–2017 served as President of the American College of Construction Lawyers. He is also a Fellow of the College of Commercial Arbitrators and a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, London, England.
Mr. Gwyn is a founding member of and former Chair of the Section of Construction Law, North Carolina Bar Association. He is a Charter Member of the N.C. Academy of Superior Court Mediators. He has served as arbitrator on many AAA, ICDR, ICC, and CPR administered arbitrations and also serves on the AAA’s Construction Mega Panel and Large, Complex Case Program Panel of Arbitrators and Neutrals; he is included on the CPR International Institute Distinguished Panels of Neutrals, including its Environmental and Construction Panels. For more than a decade, he has been regularly listed in Best Lawyers in America, Super Lawyers (Corporate Counsel Edition), and Who’s Who in American Law.
From 2007 to 2014, Mr. Gwyn was the Editor in Chief of the Journal of the American College of Construction Lawyers, published by Thomson-Reuters-West. From 1996 to 2004, Mr. Gwyn served as a Charter Trustee of North Carolina’s Clean Water Management Trust Fund.
He is a graduate of the University of North Carolina, Chapel Hill (BA 1971) and Wake Forest University School of Law (JD 1976).
Albert Bates, Jr., Pittsburgh, Pennsylvania
John E. Bulman, Providence, Rhode Island
Patricia D. Galloway, Seattle, Washington
Neal M. Eiseman, New York, New York
Herbert H. (Hal) Gray, III, Atlanta, Georgia
John W. Hinchey, Washington, DC
Allen Overcash, Lincoln, Nebraska
Stanley P. Sklar, Northbrook, Illinois
Arbitration of construction disputes presents unique issues for arbitrators and counsel arising from the sophistication and increased complexity and specialization of the construction industry. Arbitrators should familiarize themselves with the construction process and arbitral tools that have been developed to more fairly and efficiently manage construction arbitrations.
An arbitrator’s working knowledge of the construction process; the various contractual, governmental, and physical complexities affecting construction participants; the types of construction disputes; and the use of experts to develop claims evidence is advantageous to the efficient and effective arbitral resolution of construction disputes.
For more than a half century, the construction industry has been a leader in utilizing binding arbitration as a dispute resolution process. This is in no small way a response to the complexity of construction and design disputes. The combination of multiple parties, voluminous documents and correspondence, and layers of regulations and project requirements render a construction dispute difficult and expensive to prepare and present in court before a lay judge and jury. But these disputes also pose a number of unique issues for arbitrators and counsel.
Many of the topics addressed in this chapter also are examined in other chapters of this Guide. For example, Chapters 2 and 3 discuss issues regarding the appointment and disqualification of neutral and nonneutral arbitrators, Chapter 6 discusses actions to be taken at the preliminary conference, Chapter 11 discusses the conduct of the hearing on the merits, and Chapters 12 and 13 discuss the drafting and issuance of awards and postaward matters. In considering the many topics addressed in this chapter, the reader is encouraged to consult those sections in other chapters in this Guide that also implicate arbitration of construction disputes.