March 07, 2016 Articles

American Arbitration Association Revises Construction Arbitration Rules

By Edward Lozowicki

The American Arbitration Association (AAA) Construction Industry Arbitration Rules (Rules) are widely used in a variety of construction industry contracts, such as the standard contract forms published by the American Institute of Architects (AIA). E.g., AIA Document A201–2007, General Conditions of the Contract for Construction § 15.4. The Rules are fairly comprehensive and comprise both substantive and procedural provisions that are deemed incorporated into the parties' agreement to arbitrate. Rule R-1(a). The AAA recently revised the Rules and made significant changes to the prior edition issued in 2009. The revisions are intended to make the arbitration process more efficient and cost effective. The changes also include several completely new rules that provide expanded authority for the arbitrator to control the course of the arbitration.

By way of example, the new rules provide: (1) express authority for the arbitrator to hear and rule on dispositive motions; (2) strict deadlines and filing requirements for consolidation and joinder motions; (3) express authority for the arbitrator to award sanctions for noncompliance with AAA rules or orders of the arbitrator; (4) mandatory mediation to run concurrent with the arbitration, subject to opt-out; (5) new procedures for an arbitrator to issue emergency protective measures such as restraining orders; (6) an early preliminary management hearing to establish prehearing procedures and timelines; and (7) greater control over the discovery process by arbitrators, including criteria for exchange of electronically stored information (ESI).

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