Archive: 2012

1
Welcome to the 21st Edition of K&L Gates’ Arbitration World
2
Careful What You Ask For: Ten Construction and Design Contract Provisions That May Be Unenforceable
3
Pennsylvania Contractors to Ring in the New Year with New Employment Eligibility Verification Requirements
4
Welcome to the 20th Edition of K&L Gates’ Arbitration World
5
Design-Assist: Getting Contractors Involved Early
6
Toward a Unified Theory of Damages in Construction Cases: Part III — Damages in Terminations for Convenience
7
Pennsylvania Takes an Important Step Forward on Public-Private Partnerships
8
Washington Court of Appeals Holds that Summary Judgment is Proper if the Non-Moving Party’s Expert Opinion is Inadmissible Under Frye
9
K&L Gates’ Arbitration World, June 2012
10
The Perils of Settlement Releases on Subsequent Litigation of Assigned Claims

Welcome to the 21st Edition of K&L Gates’ Arbitration World

Welcome to the 21st edition of Arbitration World, a publication from K&L Gates’ International Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We are delighted to be able to include in this edition a guest contribution from David Burt, Corporate Counsel for E.I. du Pont de Nemours and Company (DuPont).  In his article, David describes the way in which DuPont’s “Global ADR Guide”, for use by DuPont’s 200 in-house lawyers across the world, came to be developed.

We are also pleased to include an article by Mick Smith, Partner & Co-Founder of Calunius Capital LLP, one of the leading providers of third party funding.  Third party funding is becoming ever more prevalent in both litigation and arbitration. In his article, Mick describes the processes of case assessment and case monitoring from the funder’s perspective.  This is the first of what will be a short series of articles on the important topic of third party funding in international arbitration.

We also include in this edition our usual update on developments from around the globe in international arbitration and investment treaty arbitration, along with specific articles covering some of those developments and other topics of interest in more detail, authored by members of K&L Gates’ International Arbitration Group.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

In this Issue:

• DuPont Navigates ADR Worldwide
• News from around the World
• World Investment Treaty Arbitration Update
• Third Party Funding: Case Assessment and Monitoring
• U.S. Supreme Court Fires Shot across Oklahoma’s Bow
• What Qualifies as an Investment? A Primer on Protecting Foreign Investments (Part 2)
• Astro: Affirming Singapore’s Position on Challenging Awards on Jurisdictional Grounds
• No Dispute About It – Dispute Boards are Hot in Chinese Construction Projects
• A Comparative Analysis of the “Choice of Law” Approaches to Privilege in International Proceedings
• UAE Arbitration Insight – New York Convention Shifts Enforcement Approach

To view the entire edition, click here.

Careful What You Ask For: Ten Construction and Design Contract Provisions That May Be Unenforceable

Josh M. Leavitt, K&L Gates LLP and Daniel G. Rosenberg

It is not unusual to see contracts in the construction industry that shift risks downstream.  Especially in markets where new projects are scarce, contractors and design professionals often have little leverage beyond their particular expertise or their relationships to modify contract provisions that shift significant risk to them.

Legislatures have responded by passing a variety of construction specific statutes designed to “level the playing field.”  Examples of such legislation include Prompt Payment Acts (which are designed to protect contractors from slow payers), anti-indemnity acts (which limit the effectiveness of contractual indemnity clauses) and other construction “fairness” legislation.

To continue reading, click here.

Pennsylvania Contractors to Ring in the New Year with New Employment Eligibility Verification Requirements

By Jacquelyn S. BryanHayes C. Stover, K&L Gates, Pittsburgh

Effective January 1, 2013, all contractors and subcontractors working on Pennsylvania public works projects will be required to verify the employment eligibility of any newly hired workers through the federal E-Verify program.  Designed to preserve local jobs, this new legislative measure will impose new burdens on contractors and subcontractors and will subject them to potentially stiff penalties in the event of non-compliance.

The Public Works Employment Verification Act was signed into law by Governor Tom Corbett on July 5, 2011.  As a precondition to being awarded a public works contract, contractors and subcontractors will be required to supply the Pennsylvania public agency that awarded the contract with a signed verification certifying that they have verified or will verify the employment eligibility of any “new” employee to be assigned to the public work using the federal E-Verify program.

To view the complete alert online, click here.

Welcome to the 20th Edition of K&L Gates’ Arbitration World

From the Editors

Welcome to the 20th edition of Arbitration World, a publication from K&L Gates’ International Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We are delighted that this edition includes a guest contribution from Abhijit Mukhopadhyay, President (Legal) of the Hinduja Group.  In his article, Abhijit offers his thoughts and perspectives on the topical subject of arbitration in India.  This represents what we expect to be the first of a number of guest contributions from in-house counsel in future editions of Arbitration World.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

In this Issue:

  • Indian Arbitration: Recent Trends
  • News from around the World
  • World Investment Treaty Arbitration Update
  • International Arbitration in Chile—2004 and Beyond
  • Thailand Loses U.S. Appeal of Confirmation of UNCITRAL Award and Challenge to Arbitrability
  • Important UK Privy Council Decision on Enforcement Against State-Owned Entities
  • Saudi Arabia Introduces a New Arbitration Law
  • The Democratic Republic of the Congo Joins OHADA and its Arbitration Mechanisms
  • Developments at CIETAC – The New Arbitration Rules 2012 and the Rift with the Shanghai and Shenzhen Sub-Commissions
  • The Revised 2012 Swiss Rules
  • ‘Asymmetric’ Dispute Resolution Clauses: A Recent Russian Decision
  • New York Courts Offer Further Support for Parties to International Arbitrations
  • New Arbitration Rules in Poland: Lewiatan Court of Arbitration
  • Pioneering Deep Sea Mining Project Heads to Arbitration Signalling a New Type of Extractive Sector Dispute
  • What’s Done is Done – Or is it? Res Judicata in Domestic and International Arbitrations in the context of Insurance Coverage Disputes
  • Investment Treaty Arbitration in Africa: Summary Overview

To view the entire edition, click here.

Design-Assist: Getting Contractors Involved Early

By Gregory Andre, K&L Gates, Chicago

Innovation in construction delivery methodology is clearly trending toward collaborative, teamwork approaches.  Design-assist is one such approach that requires taking only a small step away from traditional delivery methods and avoids the leap required by integrated project delivery.  Its potential advantages are reduced time and cost for construction, improved constructability and added value.

[A] What Is Design-Assist?

1. Overview.  Design-assist is a project delivery method in which the construction team is engaged by the owner to collaborate with the architect or engineer during the design phase.  It is intended to reduce the cost and time for construction, improve constructability and add value.  Design-assist is part of the recent trend in delivery methods toward teamwork approaches to design and construction.

To read the full article, click here.

Reprinted with Permission. ©2011 CCH Incorporated. All rights reserved.

 

Toward a Unified Theory of Damages in Construction Cases: Part III — Damages in Terminations for Convenience

Josh M. Leavitt, K&L Gates, Chicago

I. Introduction

This is the third installment in a series of articles aimed at bringing some clarity to the disparate approaches to damages practitioners often confront in construction cases.  Some of the most challenging damages questions are presented in termination disputes.  The subject of damages in terminations is simply too complex for one article of this size, and therefore the damages series will address termination damages in three installments.  This installment addresses damages in termination for convenience situations.  Later installments will address damages in termination for default situations and special damages issues when design contracts are terminated.

To continue reading, click here.

Reprinted with permission from the Journal of the American College of Construction Lawyers, Volume 6, Number 2, Summer 2012, © 2012 Thomson Reuters. Further reproduction without permission of the publisher is prohibited. For additional information about this publication, please visit west.thomson.com.

Pennsylvania Takes an Important Step Forward on Public-Private Partnerships

By: Andrew L. SwopeR. Timothy Weston, K&L Gates, Harrisburg

On July 5, 2012, Pennsylvania Governor Tom Corbett approved a key first step toward modernizing the procurement of infrastructure projects in Pennsylvania by signing legislation that expressly authorizes public-private partnerships (P3) for road, transit and other transportation related projects.  The Pennsylvania legislation focuses on transportation projects for both new and existing infrastructure.  The General Assembly viewed the P3 legislation as a means to fund and promote transportation projects to help provide the estimated $3.5 billion per year additional investment needed for transportation infrastructure without relying exclusively on tax revenue to fund those projects.  Whether Pennsylvania’s P3 legislation stimulates new transportation infrastructure projects remains to be seen, but the law provides some interesting new options to private and public parties seeking to develop transportation infrastructure in Pennsylvania.

To view the complete alert online, click here.

Washington Court of Appeals Holds that Summary Judgment is Proper if the Non-Moving Party’s Expert Opinion is Inadmissible Under Frye

Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 167 Wn. App. 28, 272 P.3d 249 (Wash. Ct. App. 2011)

Although summary judgment is improper when opposing experts present conflicting testimony on a genuine issue of material fact, this case demonstrates that a trial court can grant summary judgment if the non-moving party’s expert testimony is inadmissible under the Frye standard. 

In this case, a homeowners association sought insurance coverage when it discovered that its condominiums had been damaged by rot.  The association offered the expert testimony in question as the only proof that the building damage should be covered by the insurance policy.  The Washington Court of Appeals, Division I, held that summary judgment was proper because, although the opposing experts’ testimonies did conflict, the association did not offer admissible testimony to create a genuine issue of material fact regarding the source of the building damage.

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K&L Gates’ Arbitration World, June 2012

From the Editors

Welcome to the 19th edition of Arbitration World, a publication from K&L Gates’ Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

In this Issue:

  • News from around the World
  • World Investment Treaty Arbitration Update
  • U.S. Supreme Court Takes Another Look at the Enforceability of Pre-Dispute Arbitration Clauses
  • The “SCC Emergency Arbitrator”: First Experiences with the Pre-Arbitral Interim Relief Procedure
  • Guidance from the U.S. Second Circuit on Application of the Evident Partiality Standard
  • Early Case Assessment: A Litigation Arrow in an Arbitration Quiver
  • English Court Decides that Arbitration Agreement is Governed by Law of Seat of Arbitration and Prevails over Exclusive Jurisdiction Clause
  • International Arbitration: Developments from Singapore
  • Unsolved Mystery: Colombia’s International Arbitration Law
  • Who Qualifies as an Investor? A Primer on Protecting Foreign Investments (Part 1)
  • Developments in International Arbitration in Mauritius
  • The Chamber of Arbitration of Milan and the “Mediterranean Project”
  • Eurozone Exits: Possible Impact on Commercial Contracts
  • U.S. Ninth Circuit to Consider Who Decides Arbitrability When Arbitration Clause Incorporates UNCITRAL Rules But Includes Carve-Outs

To view the entire June 2012 edition, click here.

The Perils of Settlement Releases on Subsequent Litigation of Assigned Claims

A&T Siding v. Capitol Specialty Ins., No. 3:10-cv-980-AC, 2012 WL 707100 (D. Or. Mar. 1, 2012)

A siding subcontractor sued the CGL insurance carrier to recover amounts claimed due under a policy that was for the benefit of a condominium homeowners association.  This lawsuit arose when a general contractor was sued by the association for construction defects and the general contractor in-turn sued the subcontractor for negligent construction.  The subcontractor tendered its defense to Capitol and Zurich, each of which initially participated in the defense.  Capitol subsequently withdrew its defense because it decided the alleged defects and damage took place prior to inception of its policy.

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