JAMS Global Construction Solutions Newsletter, Summer 2009
Date: Summer 2009
Philip L. Bruner, Esq.
Volume 2, No. 2 • Summer 2009 ALSO IN th IS ISSue . . . Dubai: Changing the Face of Arbitration in the Middle east? By Ty Laurie and danieL Brenner . . . . . . . page 4 Book Review: International Construction Arbitration handbook reviewed B y harvey kirsh and duncan gLahoLT . . . . . . page 9 two ADR Approaches under the JAMS “Rapid Resolution” umbrella . . . . . . . . . page 11 ADR Case Notes . . . . page 13 Notices and Calendar of events . . . . . . . . . page 14 JAMS Welcomes New Neutrals James F . Nagle and Douglas S. Oles . . . . . page 15 JAMS, The Resolution Experts, is the largest private provider of ADR services in the United States, with Resolution Centers in major cities throughout the country. The JAMS Global Engineering and Construction Group provides expert mediation, arbitration, project neutral, and other services to the global construction industry to resolve disputes in a timely and efficient manner. See “Reshaping” on Page 2 to learn more about the JAMS Global engineering and Construction Group, go to http:/ /www.jamsadr.com/construction-practice/ JAMS GLOBAL CONSt RuCt ION SOLut IONS Leading adr developments from The r esolution experts See “JAMS International ADR Center” on Page 11 DIReCtOR’S CORNeR In its ongoing effort to strive for an understanding of the sources of disputes, as well as for the most current information as to how disputes are being resolved and could, potentially, better be resolved, JAMS has been conducting a series of Global Engineering & Construction (GEC) Roundtables throughout the country designed to find out directly from construction industry leaders where and why disputes are aris- ing, how they are currently being managed, and how the recent stimulus package might play out in the construction industry. A recent GEC Roundtable was conducted in Northern California attended by the authors as GEC neutrals, JAMS staff, and our seven guests, four representatives of large public entities and three prominent attorneys representing various “sides” of construction disputes- private owners, public owners, design professionals and contractors. A very interactive, open and thoughtful discussion at the Roundtable revealed the Reshaping ADR Strategies for today’s Global engineering and Construction Market By MICHAEL TIMPANE, ESq. & LINDA De BENE, ESq. By PhiliP l. Bruner, eSQ. Director, JAMS Global Engineering & Construction Group The world’s large construction proj- ects – on every continent and in every na- tion – float on the stream of international commerce. Each draws critical resourc- es – raw materials, materials fabrication, skilled labor, equipment, risk insurance, financing capital, and professional design and managerial services – from pools of capability available around the globe. The multitude of cross-border contractual relationships almost universally provide for private dispute resolution arrange- ments. JAMS Global Engineering and Con- struction Group (GEC) is pleased to join JAMS President, Chris Poole, in announc- ing the creation of JAMS International ADR Center. Through this ADR Center, GEC will provide expert, efficient and cost-effective international mediation, JAMS INteRNAtIONAL ADR CeNteRJAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 2 following thoughts and current is- sues: Starting with opinions about sources of construction disputes, incomplete or inadequate design documents were prominent in the discussion. This was not a “dump on the designer” theme, but rather a more nuanced discussion of why this is so. Owners seem to recog- nize the principle that there is “no set of perfect drawings,” and that design budget constraints exist, yet each drawing discrepancy can soon become an “error,” each change order request a reason to question the design. Schedule-driven design, in both private and public settings, was also identified as a problem. Finally, rather than being interested in coordination, the contractor and designer are essentially set against each other and usually have very little interaction pre-bid. Another source of dispute iden- tified by the public entities is the requirement of accepting the low bidder. A Catch-22: the owner thinks all change orders or RFI’s are being generated because the low bidder “missed” something, since all the other bids were higher. Conversely, the low bidder must have bid with low or nonexistent margins, and will indeed be “looking for” change orders, convinced the owner skimped on design in order to get low bids. Predictably, the private owner rep- resentative is aghast that anything would be built this way. A common observation among the participants was that disputes have a way of emerging in the latter stages of a project. Two reasons for this were identified. One, close out issues and any deferred payment is- sues come to the fore, subs get short draws, work slows or stops, all ac- tivities become “critical,” claims get made. Second, this is in significant part because the parties to the proj- ect do not devote enough attention and resources to the management and resolution of disputes. Either nothing is put in the contract, or, if in the contract, it is ignored. Disputes need to be “put off,” so “we can get the job done”– a noble thought, but often counterproductive. After a brief discussion of the pros and cons of the traditional methods used by the participants to resolve disputes, the general consensus was clearly that mediation, and in some cases even litigation, were preferred over arbitration. Most participants have used, and continue to routinely use, mediation, the bot- tom line view being that mediation “usually works.” However, even where successful, mediation was viewed as more of “a process” than a single session understood by all to be a one-time attempt to produce global settlement. To address this concern, one participant noted that in-house negotiations are a con- tractual prerequisite to mediation, and mediations are therefore only scheduled when they “are down to a few issues, and ready to close a deal.” Although not perfect by any means, some institutional parties still viewing mediation as a “baby-split- ting” exercise, it was evident from the comments of participants that a determined focus on attendance by the appropriate decision-makers who come to mediation sessions with the ability to make settlement calls on the spot, and on understanding and meeting the requirements of insur- ance carriers regarding information and proof of liability are ways that ADR neutrals can aid the parties in mediation improve the efficacy of that process. What appeared to be of clear import to the varied participants was the ability to solve disputes with ra- pidity while the construction process is ongoing through the use of dispute review board or single project neu- trals. The experience of those in at- tendance with independent DRB’s or single neutrals varied. Governmental agencies had more experience than the private sector in past use of DRB’s. One agency representative described using DRB’s on all projects over $3 million, expressing satisfaction with the process. Another agency used a form of DRB’s consisting solely of current employees, its representative reporting “not much success” with this obviously slanted approach. On l inda DeBene, esq. is a full-time mediator, arbitrator, special master, and project neutral with JAMS in Northern California. She has over 30 years of experience resolving construction industry disputes involving developers, general contractors, subcontractors, and design professionals. Email her at ldebene@ jamsadr.com or view her Engineering & Construction bio online. Reshaping ADR Strategies continued from page 1JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe the other hand the private owner representatives were less familiar with using DRB’s, but seemed very interested in both concepts of DRB’s and/or project neutrals. In light of a consensus that some type of early, real-time resolution of disputes is going to be a big part of the future of construction dispute resolution, Roundtable participants noted that the concept of DRB’s and project neutrals actually goes back 15 years or more, but expressed the view that, until recently, these processes never seemed to “catch on.” Early neutral evaluations of either tech- nical or legal issues (useful during construction which can ultimately be reflected in change orders), akin to mock juries prior to litigation, were uniformly viewed as something use- ful, but, as always, subject to cost concerns. What all the participants seemed to be looking for was proof that DRB’s, project neutrals or any rapid ADR process had actually worked. If shown that up-front costs for DRB’s or project neutrals actually lead to post-completion dispute resolution costs, the reluctance of owners and contractors to take on the processes for cost reasons may diminish. The other “must” is the profes- sional neutrality of the DRB members or the project neutral. In light of past perceptions of DRB’s or project neu- tral panels being “skewed,” favoring one side or another, neutrality is seen as crucial, often more critical than construction expertise which was also noted as a key consideration. One government agency participant went so far as to report that “some of the DRB members have expressed their concerns that there may be an appearance of bias if the person comes from either industry or is a for- mer employee of the (agency).” This senior construction manager saw the neutrality of professional ADR neutrals familiar with GEC matters as a benefit, as the professional can “indeed act as a neutral party with no ax to grind.” It was generally noted that some professional ADR neutrals may lack technical expertise in various areas being considered by a DRB or proj- ect neutral. Various tools can be employed to overcome this potential shortcoming, keeping in mind that neutrality and general experience in the construction industry practices of a commercial or government project lay the groundwork , and lack of bias is the underlying goal. It is recom- mended by industry representatives that the project neutral should be a person that is “familiar with our type of work so that none of the discussion is over his/her head. For example, since the transportation engineering world is often broken up into bridge guys and roadway guys, can a person that is a roadway guy determine the validity of a complex claim dealing with bridge construc- tion?” This was discussed as being a problem with a variety of solutions: (a) in the case of a three-person DRB, one of the three should have the technical expertise to determine the validity of the claim and can help the other two understand the issue; (b) providing the professional ADR project neutral with the ability to bring in technical expertise (such as scheduling, concrete or geotechnical experts) is a flexible way to add to the neutral’s expertise as needed. The need for rapid, on-the-spot determinations in commercial and governmental construction projects is only to be exacerbated by the possible effects of the federal stimu- lus package on these matters. All predicted that when there is lots of money to spend quickly, an increase in problems and the potential for costly disputes will rise exponentially to the speed by which the money has to be spent. A lack of time to thoughtfully prepare designs and/or contracts, and little money set aside for real-time dispute resolution, will drive more disputes that long outlive the projects. The conclusions reached in dis- cussion with construction industry leaders at the Northern California GEC Roundtable have been compiled and conveyed to the JAMS Global Engineering and Construction Group which is diligently preparing for the effects of these economic times. GEC welcomes client and neutral input on procedures that can aid the con- struction industry and governmental entities in performing their important work under stressful and fiscally con- stricted demands. Michael J. Timpane, esq. is a full-time neutral based in Northern California with a substantial ADR practice focusing primarily on resolving claims involving large construction projects. He is highly regarded for his ability to resolve complex construction, surety, real estate, insurance coverage and bad faith matters. Email him at email@example.com or view his Engineering & Construction bio online.JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe Dubai: Changing the Face of Arbitration in the Middle east? By Ty D. LAuRIE, ESq. & DANIEL J. BRENNER, ESq. DLA Piper LLP (US), Chicago Once booming with fast paced, innovative construc- tion projects, the construction centers of the Middle East are now beginning to feel the effects of the deteriorating market economy. As the economy continues to decline, parties to construction contracts will begin having dif- ficulty fulfilling their obligations, leading them to seek relief through alternative dispute mechanisms such as arbitration. Parties seeking to arbitrate their international construction disputes have many decisions to consider, including selecting the forum in which to seat their ar- bitration. Despite the fact that an arbitration may arise from construction disputes in the Middle East, many foreign investors will instead choose to select another forum known for its more modern arbitral systems. 1 Al- though London, New York, and Paris comprise the lead international arbitration venues, a number of countries have begun to compete to attract international arbitration business. The most recent state to enter the fray is the Emirate of Dubai. Over the last year, Dubai has taken several actions to help solidify its place among the principal venues for international arbitration. This article will focus on Dubai’s efforts to become an international center for arbitration and discuss some of the challenges Dubai will face in attaining that status. However, before addressing arbi- tration in Dubai, this article will analyze the arbitration practices and procedures in other Islamic Middle Eastern nations. By offering a glimpse into the arbitral systems in place in neighboring countries, the reader can more fully understand just how far Dubai has progressed. Arbitration in the Islamic Middle east To understand the arbitral systems in place in the Islamic Middle East, one must appreciate the important role religion plays in Middle Eastern society. As one scholar put it: “Islamic law pervades the commercial world, as well as a Muslim’s way of life. Islam is a complete way of life: a religion, an ethic, and a legal system all in one.” 2 So important is Islamic law, also known as the Shariah, that it constitutes the sole source of law in several Middle Eastern countries. 3 Accordingly, it is not surprising that the Shariah also plays a significant role in the arbitration process in Middle Eastern countries. As a result, foreign investors who are not accustomed to or familiar with the importance of religion in Middle Eastern arbitral rules may be hesitant to seat their arbitrations in the region. 4 One area where the Shariah influences arbitration in the Middle East is choice of law. Although some arbitral systems strictly adhere to the Shariah, many countries have begun to bifurcate their religious and civil codes. For example, Kuwait and Jordan have attempted to modernize their arbitral rules by requiring arbitrators to apply the law chosen by the parties, thus allowing for the application of non-Shariah law to arbitral disputes JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe within their borders. On the other hand, those states that have not bifurcated religion from their arbitral rules administer arbitrations in strict adherence with Shariah principles. Such states could rely on the Koran’s prohibition against “riba” to refuse to enforce contractual provisions calling for the award of interest or usury. 5 The Shariah also influences whether an arbitral award is bind- ing on the parties. In those countries whose arbitral regime is based pri- marily on the Shariah, arbitral awards must contain four distinct parts: “a description of the dispute; the find - ing of facts under Shariah rules of evidence; the reasoning of the award with reference to Shariah source; and the decision itself.” 6 However, in many Middle Eastern countries, even fulfilling these requirements may be insufficient. In Bahrain, Egypt, Jordan, Kuwait, Morocco, Oman, Saudi Arabia, and Syria, awards will not have a res judicata effect until registered and approved with the state court. 7 This system of court registration has led one commen- tator to observe that arbitrators in Islamic Middle Eastern countries do not “necessarily bring finality to a dispute between parties. Sufficient room is left, procedurally, for either expeditious judicial management or judicial meddling, procrastination, and delay.” 8 This requirement that arbitral awards be based on sound Shariah reasoning, in addition to the uncertainty involved in the court registration requirement, may deter some foreign investors from seating an arbitration in the Middle East. 9 Another problem inherent in many Middle Eastern arbitral regimes relates to the enforcement of foreign arbitral awards. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the “New York Convention,” re- quires signatories to recognize and enforce awards made in other na- tions. Despite the fact that 16 Middle Eastern countries have become sig- natories to the New York Convention to date, foreign arbitral awards are often refused enforcement in the Middle East. Many Middle Eastern countries rely on the public policy exception in the New York Conven- tion to deny enforcement of foreign arbitral awards that do not comply with Shariah principles. 10 Despite the fact that the International Law Asso- ciation Committee on International Arbitration strongly suggests that the public policy exception be limited to norms of international public policy, as opposed to domestic policy, many Middle Eastern states have been ac- cused of interpreting the exception otherwise. 11 For example, in Saudi Arabia, any award made abroad or using foreign law is denied enforce- ment if the award is deemed contrary to the Shariah. As mentioned earlier, this could mean denying enforce- ment of an entire arbitral award if any portion of the award constitutes interest. 12 It is no wonder why some Middle Eastern countries have begun to re- form their arbitral systems in order to attract more foreign investors and contracting parties. Unfamiliarity with the region’s religious practices combined with the important role re- ligion plays in Middle Eastern arbitral practices may encourage a foreign investor to seat his arbitration in a more familiar venue such as New York, Paris, or London. One scholar has gone so far as to note that “as a general rule, the practice of interna- tional arbitration in these states is still in its infancy . . . the experience and training of most lawyers and judges in the Middle East on international arbitration issues lags far behind what is in such commercial centers as New York, London and Paris.” 13 the Arbitral Regime in Dubai In an attempt to establish itself as a center for regional and inter- national arbitration, the Emirate of Dubai has taken several actions to address the problems found in many of the Middle Eastern arbitral systems. The Emirate hopes to create an arbitration system which inspires confidence in foreign investors and contracting parties by taking away the uncertainty inherent in Shariah- based arbitration rules. 14 The plan to establish Dubai as a principle forum for arbitration includes three distinct, well-planned actions. First, the gov- ernment of Dubai has created the Dubai International Financial Centre (the “DIFC”). The DIFC is a 110-acre “free zone” with its own jurisdiction, separate and apart from the laws of See “Dubai” on Page 6JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe Dubai and the United Arab Emirates. Second, in 2008, the DIFC amended its 2004 Arbitration Law to provide foreign parties the ability to refer their dispute to arbitration in the DIFC. Third, the DIFC partnered with the London Court of International Arbitration to create a new arbitra- tion center in the DIFC. However, even with these achievements, some believe that the new DIFC arbitral re- gime will be unable to compete with the already established regional and international arbitration forums. the Dubai International Financial Centre Free Zone The DIFC was established in September 2004 as an international financial center subject to its own civil and commercial laws. Located in the heart of Dubai’s financial dis- trict, the DIFC is one of many “eco- nomic free zones” which caters to financial service sector companies. 15 However, unlike other free zones, the DIFC has jurisdiction to pass its own commercial laws. This legislative discretion has not only allowed the DIFC to establish a dispute resolu- tion regime within its confines, but also has allowed the DIFC to create investor-friendly laws in an effort to attract more foreign investment. For example, the DIFC allows 100 per- cent foreign ownership, does not tax income and permits the repatriation of profits. 16 Another fact which may be of in- terest to foreign investors is that the DIFC is governed by English common law rather than the civil code that ap- plies in the rest of the Gulf States. 17 Furthermore, the DIFC has its own court (the DIFC Court) and its own judges which apply procedural rules based on the English Commercial Court rules; and those judges have great experience in international commercial arbitration. The DIFC Court judges consist of Chief Justice Anthony Evans, a former Commercial Court and Court of Appeals judge in England, and several other expe- rienced commercial judges and ar- bitrators. This level of sophistication and experience will help facilitate the arbitral system in the DIFC should the DIFC Court ever be called upon to support an arbitration. Foreign inves- tors and contracting parties should feel assured that should a court be needed to provide interim measures of protection, rule on challenges to arbitrators, or assist with the taking of evidence, the judges at the DIFC Court have the requisite skill and experience to do so. The DIFC’s investor-friendly laws and English-based legislative and judicial regime will surely help attract foreign investment within the DIFC. Foreign investors who are unfamiliar with the Shariah-based civil laws in other Middle Eastern countries will feel more comfortable investing in a system based on more familiar laws and practices. The end product is “a business-friendly environment that is regulated by a legal system which is both accessible and familiar to com- mon-law lawyers.” 18 the DIFC Arbitration Law Having established a financial- free zone dedicated to attracting foreign investment, the next stage of Dubai’s plan to become a center for international arbitrations was to amend its arbitration law. Until recently, the DIFC Arbitration Law only applied to disputes and trans- actions having some connection with the DIFC. On September 2, 2008, however, the DIFC Arbitration Law was amended to remove these jurisdictional limitations. The new DIFC Arbitration Law allows parties to seat their arbitration in the DIFC regardless of whether they have any connection to the DIFC. In addressing the implications of this amendment, Dr. Omar Bin Sulaiman, the Governor of the DIFC commented: “By offering arbitration to companies throughout the world, the DIFC is reaffirming its commitment to creating a legal and regulatory environment of the highest standard that surpasses the requirements of leading financial institutions.” The new law is also based on the United Nations Commission on Inter- national Trade Law (“UNCITRAL”), a model law universally recognized “as the accepted international leg- islative standard for a modern arbi- tration law.” 19 The combination of a law based on an internationally accepted model with the removal of the arbitration law’s jurisdictional limitations allows foreign businesses to use arbitral procedures with which they are familiar while also allowing Middle Eastern businesses to have their disputes resolved within the region. Another key feature of the new DIFC Arbitration Law relates to en- forceability. Unlike the process for en- forcing and finalizing arbitral awards in other Middle Eastern forums, the DIFC Arbitration Law streamlines this Dubai: Changing the Face of Arbitration continued from page 5JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe process. Absent the applicability of one of the enforcement exceptions in the New York Convention, a foreign arbitral award will be recognized as binding within the DIFC upon the production of the original arbitral award or a certified copy. The DIFC Arbitration Law has also simplified the recognition of arbitral awards rendered in the DIFC. First, the award must be ratified by the DIFC Court which, as has been dis- cussed, contains judges who are very supportive of the arbitral process. Next, a Dubai-based court, which has no authority to review the merits of the DIFC award, conducts a cursory review of the award to confirm that it is appropriate for enforcement and has been translated into Arabic. Once this is confirmed, the award may be enforced in Dubai and the greater United Arab Emirates. Moreover, because the United Arab Emirates became a signatory to the New York Convention in 2006, a confirmed DIFC arbitral award automatically becomes enforceable in more than 140 other countries around the world. 20 However, it should be noted that the problems inherent in enforc- ing awards in other Middle Eastern countries largely remain. Therefore, although parties selecting the DIFC as their arbitral forum can rest assured that their award will be enforceable throughout most of the world, some Middle Eastern countries may rely on Shariah principles to deny enforce- ment. the DIFC-LCIA Arbitration Centre The culmination of Dubai’s strat- egy to become a lead forum for arbitral disputes is the DIFC’s partner- ship with the London Court of Inter- national Arbitration (the “LCIA”) in launching the DIFC-LCIA Arbitration Centre. The LCIA is one of the most respected and longest established commercial arbitration and media- tion administrative institutions in the world. Both parties hope that the combination of the DIFC’s business friendly legislative regime and the LCIA’s international reputation will act to attract foreign arbitrations to the new centre. This sentiment was shared by Mohammed bin Rashid al Maktoum, Prime Minister of the United Arab Emirates, at the open- ing of the arbitration centre: “[t]he establishment of the DIFC LCIA Ar- bitration Centre is part of a strategy to position Dubai as an international arbitration jurisdiction. This is a land- mark step for Dubai, reaffirming its status as one of the world’s lead- ing business hubs and creating an efficient working environment for local and international companies to prosper.” The new Arbitration Centre will supervise arbitrations in accordance with a modified version of the LCIA rules and procedures. The DIFC-LCIA rules are said to be “universally ap- plicable and compatible with both civil and common law systems, of- fering the international community, international lawyers and arbitrators a comprehensive and modern set of rules and procedures.” 21 Another attraction of the Arbitration Centre is the ability of parties to access the LCIA’s vast database of leading arbi- trators and experienced staff. Fur- thermore, of additional significance to some parties is that the LCIA, unlike the International Chamber of Commerce and other arbitral institutions, charges administrative and arbitrators’ fees on a time-basis rather than as a percentage of the value of the claim. Thus, parties with large claims can rest assured that their arbitral fees will be based on the time expended by the arbitrators rather than as a percentage of the overall claim in dispute. As a result of the creation of the DIFC, the amendment to the DIFC Arbitration Law and the creation of the DIFC-LCIA Arbitration Centre, international parties now have an- other choice when selecting their arbitral seat. Because of these three achievements, international parties can now take advantage of “inter- national arbitration conducted within the Middle East under the supervision of internationally renowned judges and within one of the most modern, user-friendly and technically sophisti- cated court systems in the world.” 22 Furthermore, the new arbitration centre will administer arbitrations under a law based on the UNCITRAL, an internationally recognized and accepted arbitration law, and con- ducted pursuant to LCIA arbitral rules. Dubai is hoping these attractive features will draw those parties who would have otherwise never consid- ered arbitrating their disputes in the Middle East to choose the DIFC as the seat of their next arbitration. Challenges to the DIFC Arbitral Regime Despite its best efforts, the DIFC’s status as a top arbitral forum is not guaranteed. Standing in its way is a long list of competitors, both region- al and international. The DIFC-LCIA Arbitration Centre faces competition not only from the lead international arbitral forums in New York, London, and Paris, but also from within the Middle East itself. For example, the Abu Dhabi Commercial Conciliation See “Dubai” on Page 8JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe and Arbitration Center and the Qatar International Centre for Reconcilia- tion also seek to attract international investors and contracting parties. Some believe that Abu Dhabi may have an edge over the DIFC due to its first-rate infrastructure and the location of the UAE Central Bank and other organizations within its borders. 23 In addition to the international and regional arbitration forums, the DIFC-LCIA Arbitration Centre must also compete with another Dubai- based arbitration center: the Dubai International Arbitration Centre (the “DIAC”). In an attempt to keep up with the developments within the DIFC, the DIAC has recently released new arbitration rules based on UN- CITRAL, International Chamber of Commerce, and American Arbitra- tion Association rules. The DIAC’s new rules appear to incorporate some of the best provisions of each of these institutional rules in an at- tempt to provide a straightforward yet comprehensive arbitral frame- work. 24 However, because the DIAC is located outside the DIFC, it cannot offer the same business-friendly and pro-arbitration environment as the DIFC-LCIA Arbitration Centre. In the end, only time will tell whether the DIFC-LCIA Arbitration Centre will be able to compete with these other established arbitral seats. Conclusion “The creation of the DIFC-LCIA Arbitration Centre achieves DIFC’s aim to be the key source, and sole body, in providing unique and ef- ficient arbitration services as an alternative way of dispute resolu- tion for the business and commer- cial community in the DIFC, Dubai, the region and internationally.” 25 Although it is still too early to tell, the DIFC possesses all of the tools necessary to become the next inter- national arbitration center. With the number of Middle Eastern construc- tion projects currently at risk due to loss of financing, parties breaching their contracts or otherwise, the DIFC-LCIA Arbitration Centre should draw plenty of contractual disputes. Contracting parties will undoubtedly be attracted to the DIFC’s pro-busi- ness environment and sophisticated judiciary, the newly amended DIFC Arbitration Law and the DIFC’s part- nership with one of the foremost arbitral institutions in the world. That aside, whether the DIFC can compete with arbitration powerhouses in New York, London and Paris remains to be determined. Ty D. Laurie, Esq. is a Partner with DLA Piper based in Chicago and Chair of DLA Piper’s Construction Law Group. Email him at firstname.lastname@example.org. Daniel J. Brenner, Esq. is an Associate in the Litigation Group with DLA Piper based in Chicago, specializing in construction and real estate disputes. Email him at email@example.com. Arthur J. Gemmell, Commercial Arbitra- tion in the Islamic Middle East, 5 Santa Clara J. Int’l L. 169, 169 (2006). Id. at 170 (quotation and citation omit- ted). Id. at 171. Id. at 169-170. Abdullah Kh. Al-Ayoub, International Commercial Arbitration in the Middle East, American Bar Association Section on International Law, at 6-7 (Spring Meeting, 2006), available at http://www.abanet. org/intlaw/calendar/spring2006materials. html. 1. 2. 3. 4. 5. Dubai: Changing the Face of Arbitration continued from page 7 Arthur J. Gemmell, Commercial Arbitra- tion in the Islamic Middle East, 5 Santa Clara J. Int’l L. 169, 184 (2006). Id. at 185. Id. Id. at 169-170; Tom Canning, Unique Ar- bitral Regime to be Established in Middle East, DLA Piper Int’l Arb. Newsl. (DLA Piper LLP (US)), Feb. 11, 2008. Arthur J. Gemmell, Commercial Arbitra- tion in the Islamic Middle East, 5 Santa Clara J. Int’l L. 169, 188-89 (2006). Abdullah Kh. Al-Ayoub, International Commercial Arbitration in the Middle East, American Bar Association Section on Inter- national Law, at 6 (Spring Meeting, 2006), available at http://www.abanet.org/intlaw/ calendar/spring2006materials.html. Id. at 6-7. Id. at 14. Tom Canning, Unique Arbitral Regime to be Established in Middle East, DLA Piper Int’l Arb. Newsl. (DLA Piper LLP (US)), Feb. 11, 2008. Claudia T. Salomon, J.P . Duffy & Tom Can- ning, The New Dubai International Arbitra- tion Law, New York L.J., Nov. 18, 2008. Id. Jonathon Ames, Dubai: The World’s Next Great Arbitration Centre?, Times Online, Apr. 7, 2008, available at http://business. timesonline.co.uk/tol/business/law/ar- ticle3698046.ece. Id. Arbitration in DIFC: Recent Develop- ments, Gulf Construction Worldwide, Dec. 1, 2008, available at 2008 WLNR 23095366. For a list of signatories to the New York Convention, see the United Nations Commission on International Trade Law website at http://www.uncitral.org/uncit- ral/en/uncitral_texts/arbitration/NYCon- vention_status.html. Launch of the DIFC LCIA Arbitration Centre, Feb. 17, 2008, available at http:// www.ameinfo.com/147193.html. Jim Delkousis & Tom Canning, Doing Busi- ness in the Middle East: Problem Solved, DLA Piper Int’l Arb. Alert (DLA Piper LLP (US)), Sept. 4, 2008. Jonathon Ames, Dubai: The World’s Next Great Arbitration Centre?, Times Online, Apr. 7, 2008, available at http://business. timesonline.co.uk/tol/business/law/ar- ticle3698046.ece. Philip Chong & Tom Canning, Dubai: The Next Big Thing, DLA Piper Int’l Arb. Newsl. (DLA Piper LLP (US)), Summer, 2007. Launch of the DIFC LCIA Arbitration Centre, Feb. 17, 2008, available at http:// www.ameinfo.com/147193.html (quot- ing Dr. Omar Bin Sulaiman, Governor of the DIFC). 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 9 See “Book Review” on Page 10 Reviewed by HARvEy J. KIRSH, ESq. and DuNCAN W. GLAHoLT , ESq. We have been working with this book for a number of months now and each of us has been back and forth through it a number of times. We can honestly say that we have our fingerprints all over John Hinchey’s and Troy Harris’ superior guide to in- ternational construction arbitration. From both practical and intellectual perspectives, this is a well-written, reader-friendly, and thoroughly researched book. It offers practical guidelines and authoritative com- mentary, and is one of those books that you want to keep on the corner of your desk for constant reference. In the early 1980’s, there were only a few available books on the practice of international commercial arbitration, let alone international construction arbitration. In these early years, books focused exclusively on construction arbitration (see, for example, Stuart Farber’s “Arbitration Handbook” (1982), Arnold M. Zack’s “Arbitration in Practice” (1984), and James Acret’s “Construction Arbitra- tion Handbook” (1986)). In 1986 Alan Redfern and Martin Hunter first published their “Law and Practice of International Commercial Arbitra- tion,” now widely regarded as the lo- cus classicus in the area. A year later, the first edition of what is now the two-volume “Bernstein’s Handbook of Arbitration and Dispute Resolution Practice” was published, dealing with the more practical aspects of inter- national commercial arbitration. This book has also gone through at least one reprinting and four editions, most recently in conjunction with The Chartered Institute of Arbitra- tors, edited by John Tackaberry Q.C. and Arthur Marriott Q.C. It is another classic work, but still a work with a much broader focus. None of these books focused on international con- struction arbitration. The 1990’s saw the publication of Berthold H. Hoeniger’s “Commercial Arbitration Handbook” (1990); Karl Mackie’s “A Handbook of Dispute Resolution: ADR in Action” (1991); Mark Huleatt-James’ and Nicholas Gould’s “International Commercial Arbitration Handbook” (1996); and the “Handbook of Arbitration Prac- tice” (1997), a collaborative effort by Ronald Bernstein, John Tackaberry, Arthur Marriott and Arnold M. Zack. The new millennium opened appro- priately in January of 2000 with the publication of a third edition of Craig, Park and Paulsson’s “International Chamber of Commerce Arbitration,” updating their already classic work to accommodate the 1998 ICC Rules of Arbitration. In 2004, Hark Huleatt- James and Phillip Capper entered the field with their “International Arbitration: A Handbook,” followed in 2006 by Thomas Carbonneau with “AAA Handbook on International Arbitration and ADR” and in 2007 by Rufus Rhoades, Daniel M. Kolkey, and Richard Chernick’s “Practitioner’s Handbook on International Arbitra- tion and Mediation.” Most recently, the “Handbook of ICC Arbitration” was published by Michael W. Buhler and Thomas H. Webster in 2008, but none of these books focused on in- ternational construction arbitration. To find something on international construction arbitration one had to know their way around construction law textbooks. For example, noted engineer, arbitrator, mediator and conciliator Professor Nael Bunni first published his “The FIDIC Forms of Contract” in 1991 (now in its third printing) containing an expert’s view of construction arbitration. It was Professor Bunni who coined the term “disputology” to describe this area, a term that authors Hinchey and Harris adopt in their work. A decade later in the United States, Philip L. Bruner and Patrick J. O’Connor Jr. published their magisterial seven- volume treatise “Bruner & O’Connor on Construction Law” devoting two full chapters to arbitration and inter- national construction law as discrete subjects of inquiry. The problem for construction law- yers, therefore, was that during this period of intense intellectual activity in the area of international arbitra- tion, the more practical aspects of actually conducting an international construction arbitration were not directly addressed. This problem was compounded by the fact that during the three decades described, there was an abundant overlay of directly applicable official and quasi-official rules, protocols, commentaries and other similar materials but nowhere Book review International Construction Arbitration handbook w ritten by John w . hinchey and Troy L . harris • st . paul, Mn: Thomson/w est, 2008JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 10 were they collected and rationalized. The most current versions of these official publi- cations are now bound into the Hinchey/Har- ris Handbook. A u t h o r s J o h n Hinchey and Troy Har- ris have distilled this mass of information into a single volume reference work con- taining all of the ma- terial necessary to the conduct of an international construc- tion arbitration. The core principle of the Handbook is to make this complex area accessible. The authors make the point in their preface that the Handbook is a “guide to the subjects, issues and considerations applicable to international construc- tion arbitration” and that their intention was to “attempt to be comprehensive in [identifying] those topics and issues, beginning with the role of construction and construction arbitration in the world marketplace of today” that arise in the field oc- cupied by international construction activities. The authors have achieved their goal. The deep research and reading of the authors is evident throughout. The Handbook does not advance or defend any particular critical point of view, with the one possible exception of their recognition that private do- mestic dispute resolution in the con- struction industry is being challenged both on grounds of what one might call “legitimacy” and “efficiency” principles. Instead of dwelling on such esoteric subjects, however, the Handbook simply moves forward and synthesizes a tremendous amount of primary and secondary material into a well-organized expository text. There is also strength and value in the footnotes. The book is well worth its price merely as a stand-alone bibliog- raphy in this narrow area. As befits a book entitled “International Con- struction Arbitration Handbook,” the sources quoted are wide rang- ing and international with frequent recourse to Canadian, U.K. and Asian resources. Importantly, the Handbook has a strong and useful internal structure. It is fully indexed and extensively cross-referenced. The Handbook lists “Practice Tips” and includes “Case Examples.” The publisher has included gener- ous material in the appendices, five of them in total, occupy- ing approximately 750 pages of text, includ- ing Appendix I: Con- ventions and Treaties; Appendix II: Arbitra- tion Laws; Appendix III: Arbitration Rules; Appendix IV: Arbitra- tion Guides and Pro- tocols; and Appendix V: Sample Provisions and Other Practice Materials. As of the date of publication, this is a unique and useful collection of these materials of everyday refer- ence. When the authors deal with case law, it is treated with precision and care. Hinchey and Harris discuss the mutuality of the right to arbitrate; in- ternational treaties and legal systems as sources of jurisdiction (section 4:6); interim relief from the tribunal; decisions involving the selection of experts, including standards of reli- ability and independence (section 6:30); rules of evidence, burdens of proof, and presumptions (section 9:5); and recognition and enforce- ment of awards, primary and second- ary jurisdictions (section 12:3) in all of which cases reference to domestic case law is appropriate, and in most instances mandatory. Unfortunately the Handbook was at press at the time of the March 25, 2008 U. S. Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc. which is relevant to section 2:37 (Ap- peals and judicial relief) and section 12:4 (Recognition and enforcement of awards – Actions to set aside). Hall Street does appear as a footnote The core principle of the international construction arbitration handbook is to make this complex area accessible . . . . The authors have achieved their goal . Book Review continued from page 9JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 11 to section 12:4, but only as being a case on appeal to the U.S. Supreme Court. This is something that the authors and publisher will no doubt want to address in supplementing this volume. As one would expect from practi- tioners of the recognized internation- al stature of John Hinchey and Troy Harris, the chapters on the practice of international construction arbitra- tion are particularly strong. Chapter 6, Developing the Case for Arbitra- tion, including section 6:9 Reverse Engineering the Award, section 6:16 Reconstructing the relevant history of the project – Using the rules of prob- ability and coherence, section 6:35 Reconciling effective preparation with case budgets, and Chapter 10 “Fast Track” Construction Arbitra- tions with section 10:10 Tips and techniques for “fast tracking” are all particularly valuable. As we said at the outset, this is a book to keep on the corner of your desk as a constant reference. All too often in international con- struction disputes we see a quality of engagement best described in a quotation attributed to Napoleon: “Je m’engage, et après ça, je vois”, “I engage, and after that I see what I do.” With John Hinchey and Troy Harris’ treatise at your disposal, you will be able to turn this proposition around. Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited. Mr. Kirsh is a mediator, arbitrator, and project neutral with the JAMS New York Resolution Center, and a partner at Osler, Hoskin & Harcourt LLP in Toronto, Canada. Email him at hkirsh@ jamsadr.com or view his Engineering & Construction bio online. Mr. Glaholt is a partner at the Toronto construction law firm of Glaholt LLP. Email him at firstname.lastname@example.org. arbitration and other dispute resolu- tion services to the global engineer- ing and construction industry. The ADR Center will be headquartered in Rome and New York with additional hearing locations in Geneva, London and Brussels. No existing arbitration center else- where in the world rivals The JAMS International ADR Center in depth of engineering and construction expertise. It is home to some of the The AIA’S “Initial Decision Maker” Concept and the ConsensusDoCS “Dispute Mitigation and Resolution” Process: two ADR Approaches under the JAMS “Rapid Resolution” umbrella continued from page 1 world’s most highly skilled interna- tional arbitrators and mediators with exceptional experience on major en- gineering and construction projects in Europe, the Middle East, Asia and the Western Hemisphere. Combined with extensive experience of GEC members as arbitrators, mediators, project neutrals, DRB members and creative problem solvers, the center offers an unparalleled combination of industry knowledge and ADR skills. US Contact Information: www.jamsinternational.com or 1-212-607-2799 EU Contact Information: www.jamsadrcenter.com or (+39) 06 6938 000 By PhiliP l. Bruner, eSQ. The year 2007 will be remem- bered by as the year in which the U.S. construction industry rejected and discarded the century-old dispute res- olution process that required claims and disputes to be resolved either by the designers’ initial decision or by binding arbitration. In a “shot heard round the construction world,” both the American Institute of Architects (AIA) and the Associated General Contractors of America (AGC) issued in 2007 industry contract forms that altered past practices and left litiga- tion as the “court of last resort” unless the parties themselves crafted and agreed upon their own favored dispute resolution procedures. The construction industry now recognizes that rapid early resolution of claims and disputes is a hallmark of a successful project, that “one size of ADR does not fit all disputes,” and that the parties themselves are in the best position to agree upon ADR procedures most suited to their situation. Thus in 2007, both the AIA and AGC ConsensusDOCS contract forms substituted voluntary in lieu of mandatory dispute resolution practices One crucial 2007 change to Ar- ticle 15 of the AIA A201 General See “Two ADR Approaches” on Page 12JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 12 Conditions of Contract was to allow the parties to select their own inde- pendent “Initial Decision Maker” (IDM) – in lieu of the project architect – as the INITIAL decider of disputes and claims between owner and con- tractor. For over a century, the project architect had been mandated as the initial decider of disputes, and the AIA documents had sanc- tioned the architect’s three (often conflicting) historic roles as the independent design pro- fessional of record, the owner’s construction agent/observer and the ostensibly neutral ini- tial dispute decider. In recent decades, many have ques- tioned whether any architect can have the independence and background to be a neu- tral initial decider of disputes between the owner and con- tractor, and particularly of dis- putes that implicated the archi- tect’s own services or involved legal or factual issues beyond the architect’s professional competence. Such questions encouraged parties to by-pass the architect initial decider role and to allow disputes to pile up during the job for resolution by arbitration at the end of the project in one typi- cally long and expensive proceeding. Moreover, many architects candidly admitted to being uncomfortable in taking positions on claims adverse to owners who paid for their services, or in deciding disputes involving critical legal and factual issues (such as the legal propriety and factual material- ity of grounds alleged as a basis for contract termination for default) that could create potential liabilities. From the contractors’ 2007 per- spective, the construction industry’s favorable experience with early mediation and dispute review board non-binding decisions (which, ac- cording to The Dispute Review Board Foundation, have resulted in the resolution of 98% of the claims submitted) confirmed the wisdom of having the parties engage in early dispute resolution – without any in- volvement whatsoever of the design professional. In Article 12 of the 2007 ConcensusDOCS 200 General Conditions, contractors opted for a tiered ADR process that begins with structured negotiations between the contractor and owner at increasingly higher levels of managerial authority. Disputes not settled by negotiation are sent to either a “project neutral” or a Dispute Review Board as agreed by the parties for a non-binding deci- sion. The Project Neutral and the DRB thus play a role comparable to the AIA’s IDM. Failure of the parties to agree upon selection of a neutral or DRB will result in mandatory media- tion under mediation rules agreed by the parties. An unsuccessful media- tion leads to court litigation unless the parties agree on binding arbitra- tion. Whether called an “initial decision maker” or a “project neutral” or a “mediator,” the crucial in- gredients of each role are true expertise in the subject matter in dispute and consummate skill in reasoning with and bringing parties’ perspectives together. The objective is to get the issues settled rapidly. There is no need to build in- flexible “vertical silos” around ADR roles that would impede or increase the cost of achiev- ing settlement. Instead, a flex - ible, straight-forward, practical ADR process can be crafted that brings the best dispute resolver(s) to bear upon the problem at hand. The “Rapid Resolution” pro- cess offered by JAMS Global Engineering and Construction Group (GEC) is a flexible, straight-forward, practical ADR process that invokes the ADR methods best suited under the circumstances to resolve prompt- ly all disputes at issue. Both the IDM and the “Project Neutral” fall under the JAMS GEC “Rapid Resolution” umbrella. Mr. Bruner is a JAMS mediator, arbitrator, and project neutral based in Minnesota. Email him at email@example.com or view his Engineering & Construction bio online. JAMS Global Engineering and Construction Group may be reached at its Rapid Resolution “one call” national number: 866-956-8104. two ADR Approaches under the JAMS “Rapid Resolution” umbrella continued from page 11JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 1 u .S. Supreme Court per- mits a nonsignatory to an arbitration agreement to enforce arbitration under the FAA against a signatory party where state law so allows: Arthur Anderson LLP v. Carlisle, 129 S. Ct. 1896 (May 4, 2009). Under the law of various states, a non-signatory to a contract nevertheless may be permitted to enforce the con- tract’s arbitration clause under theories such as third-party beneficiary, waiver and estoppel, assumption, agency, subrogation, assignment, alter ego, joint liability, and incorporation by reference or implication. See 6 Bruner & O’Connor on Construction Law 20:63 – 20:71. Under Section 3 of the Federal Arbi- tration Act (FAA), a court may stay litigation only of claims “referable to arbitration under an agreement in writing.” In Arthur Anderson, the U.S. Su- preme Court, in a 6-3 decision, ruled that the rights of non-signatories to enforce written contracts were to be determined under state law, and reversed a holding of the U.S. Court of Appeals for the 6th Circuit that the FAA only authorized a court to stay litigation between actual signatories to a written arbitration agreement. The Court thus broadened consider- ably opportunities of non-signatories to stay litigation and compel arbitra- tion under the FAA. The decision is consistent with the Court’s prior decisions leaving to state law the question of whether a valid arbitra- tion agreement exists. See, e.g., First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 943 (1995) A non-signatory to an arbitration clause with vicarious liability for the award is deemed bound by the award by participating in the arbitration: Jadhav v. Ackerman, 878 NyS 2d 766 (Ny App. Div. May 12, 2009). A vicariously liable non-signatory to an arbitration clause nevertheless was deemed bound by an arbitration award rendered in a proceeding in which the non-signatory participat- ed, albeit only in an alleged corpo- rate capacity. By participating in the proceeding, the non-signatory was deemed to have waived objections as to lack of notice or service of the demand. A non-signatory surety cannot be compelled to arbitration pre- dispute claims pursuant to an arbitration clause in the bonded contract but can be bound by its post-dis- pute agreement to an ar- bitration award against its principal: Dodson Brothers Construction Co. v. Ratliff, Inc., 2009 WL 806800 (D. Neb. February 27, 2009). After a surety’s contractor/ principal and subcontractor/ payment bond claimant were ordered to arbitrate their dis- putes pursuant to an arbitra- tion clause, the subcontractor then sued the surety in a separate action and moved the court to consolidate the two arbitrations. The surety’s payment bond contained no agree- ment to arbitrate. Finding nothing in the prime contract, subcontract or bonds that expressly required the surety to arbitrate the subcontractor’s payment bond claim, the Court ruled that the surety had no obligation to arbitrate pre-dispute claims. But the Court also found that the surety, after the payment bond claim had been asserted, that the surety had agreed informally to be bound by an arbitration award in favor of the bond claimant and against its bond principal, and therefore granted the motion to compel to the extent of the surety’s post-dispute consent to be bound. See generally 6 Bruner & O’Connor on Construction Law 20:71 and Restatement (Third) of Surety- ship & Guaranty 67(2) (1996). receive The newSleTTer elecTronically To sign up for your complimentary electronic copy of JAMS Global Construction Solutions, please email firstname.lastname@example.org.JAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 1 uPCOMING eVeNtS SEPT. 11, 2009: Mediation Seminar at Pearlman 2009 Woodinville, WA • http://www.thepearlman.net MICHAEL J. TIMPANE and KENNETH C. GIBBS, JAMS, will present a mediation seminar during this annual event for the Pearlman Association, an association of major sureties and the consultants and attorneys who service them. SEPT. 14-15, 2009: Surviving and Prospering on construction Projects under the new administration Atlanta, GA • http://www.constructionchannel.net Associated owners & Developers 2009 National Conference East • Sponsored by JAMS JoHN W. HINCHEy , JAMS, is a panel member of Session 7, Day 2, 9 AM, on “Managing the Risks and Obligations of Electronic Discovery: Sanctions, Spiraling Costs and Accessibility.” oCT. 4 – 9, 2009: international Bar association annual conference 2009 Madrid, Spain • http://www.int-bar.org/conferences/Madrid2009/info_7.cfm HIS HoNouR HuMPHREy LLoyD qC , JAMS, will chair a session of the International Construction Projects Committee on “Time and Acceleration Issues Affecting International Construction Projects, Especially Concurrent Delay.” oCT. 16, 2009: The next wave of construction Dispute resolution Atlanta, GA • http://www.theseminargroup.net/seminar.lasso?seminar=09.CDRGA The Seminar Group • Program Chair: JoHN W. HINCHEy , JAMS and King & Spalding LLP Faculty Includes JAMS neutrals PHILIP L. BRuNER, JESSE B. “BARRy” GRovE III , and Roy S. MITCHELL oCT. 30, 2009: a national Summit on Business-to-Business arbitration Washington, DC • http://www.thecca.net or Deborah.Rothman@aya.yale.edu or email@example.com The College of Commercial Arbitrators • organizer: CCA President-Elect HoN. CuRTIS voN KANN, (RET .), JAMS opening Address: THoMAS J. STIPANoWICH , Pepperdine University School of Law and JAMS Luncheon Keynote: Hon. Judith S. Kaye, Retired Chief Judge of New York Court of Appeals, Former President of the Conference of Chief Justices, now Of Counsel to Skadden Arps NOtABLe MeNtIONS KENNETH C. GIBBS was recognized as one of two highlighted in the Construction Mediators – California category in the 2009 edition of Chambers USA. In the inaugural edition (2009-2010) of “Cross Border Construction and Projects Handbook” (published by PLC Practical Law Company, London), JoHN W. HINCHEy was listed as one of the top construction lawyers in Georgia, and HARvEy J. KIRSH was tied for the title of top construction lawyer in Canada. HIS HoNouR HuMPHREy LLoyD qC , JAMS, was awarded an Honorary Doctorate of Laws (LLD) by Leeds Metropolitan University on July 13, 2009 as part of Summer Graduation celebrations. THoMAS J. STIPANoWICH , JAMS, has been designated the William H. Webster Chair in Dispute Resolution at Pepperdine University School of Law. • • • • Notices & Calendar of eventsJAMS GLOBAL CONSt RuCt ION SOLut IONS • SuMMeR 2009 • PAGe 1 ReCeNt ARtICLeS AND PAPeRS “Taming Construction Disputes Through Rapid Resolution” by JoHN W. HINCHEy, JAMS and King & Spalding LLP , was recently published by Engineering News-Record in July. “Global Engineering and Construction ADR: Meeting An Industry’s Demand for Specialized Expertise, Innovation, and Efficiency” by PHILIP L. BRuNER, JAMS, appeared in the 2009 edition of the Journal of the Canadian College of Construction Lawyers. “A Report Card on the quality of Commercial Arbitration: Assessing and Improving Delivery of the Benefits Customers Seek” by HoN. CuRTIS E. voN KANN (RET .), JAMS, and “Arbitration and Choice: Taking Charge of the ‘New Litigation’” by THoMAS J. STIPANoWICH , JAMS, will be published in the DePaul Business & Commercial Law Journal. “Arbitration: The ‘New Litigation’” by THoMAS J. STIPANoWICH, JAMS, will be published in January 2010. For more information or copies of these articles, please contact firstname.lastname@example.org. ReCeNt SPeAkING eNGAGeMeNtS AND PROGRAMS JAMS GLoBAL ENGINEERING AND CoNSTRuCTIoN GRouP hosted its first seminar - a day-long program on U.S. and Canadian cross-border construction industry ADR in conjunction with the Society of Illinois Construction Attorneys in Chicago, Illinois, on May 28, 2009. The event was held in the JAMS Chicago Resolution Center and was well attended by JAMS and SOICA neutrals and attorneys, as well as members of the Canadian College of Construction Lawyers. A special thank you to Lorence Slutzky, the President of SOICA, for helping organize this successful event. PHILIP L. BRuNER, JAMS, presented on international dispute resolution and the Energy Charter Treaty at the Annual Meeting of the Inter-Pacific Bar Association, in the Manila, Phillippines, on May 2, 2009. HARvEy J. KIRSH , JAMS, organized a presentation featuring The Right Honourable Beverley McLachlin, Chief Justice of the Supreme Court of Canada, who spoke on “Judging Litigation in the Construction Industry” at Osler, Hoskin & Harcourt LLP in Toronto, Canada on April 30, 2009. Mr. Kirsh spoke on “Alternatives to Litigation in the Construction Industry.” THoMAS J. STIPANoWICH, JAMS, and HoN. CuRTIS voN KANN , JAMS, presented at the DePaul University Law School entitled “Winds of Change: Solutions to Causes of Dissatisfaction with Arbitration” in March 2009. the JAMS GLOBAL eNGINeeRING & CONStRuCtION GROuP WeLCOMeS tWO NeW NeutRALS • • • • • • • • JaMeS F. naGle, eSQ. Mediator • Arbitrator • Project Neutral Nationally renowned for his expertise in federal contracting, particularly in the area of construction con- tracts, Mr. Nagle has served as a neutral in many complex, multi-million-dollar domestic and international disputes. He has worked exclusively in government contracts as a partner at Oles Morrison Rinker Baker, LLP since 1990 and for 11 years prior to that in the U.S. Army. He specializes in resolving business/com- mercial, construction, engineering, and governmental and regulatory matters. DouGlaS S. oleS, eSQ. Mediator • Arbitrator • Project Neutral A partner at Oles Morrison Rinker Baker, LLP since 1987, Mr. Oles is recognized as a national leader in the practice of construction law and in various areas of public and private commercial contracts. He has extensive experience in both litigation and transactional work in the U.S. as well as the U.K., China, Brazil, and the Netherlands. Mr. Oles specializes in resolving cases involving business/commercial, construction, engineering, intellectual property, and real estate disputes.newsletter Board of editors PhiliP l. Bruner, eSQ.* Director, JAMS Global Engineering and Construction Group harvey J. KirSh, eSQ.* JAMS Global Engineering and Construction Group JoHN J. WELSH, ESq. JAMS Executive Vice President and General Counsel JAMS Global Construction Solutions seeks to provide informa- tion and commentary on current developments relating to dispute resolution in the construction industry. The authors are not engaged in rendering legal advice or other professional services by publication of this newsletter, and information contained herein should not be used as a substitute for independent legal research appropriate to a particular case or legal issue. JAMS Global Construction Solutions is published by JAMS, Inc. Copyright 2009 JAMS. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent. JAMS GLOBAL CONSt RuCt ION SOLut IONS Leading adr developments from The r esolution experts Additional members of the JaMS Global engineering & construction Group Viggo Boserup, Esq. • Hon. William J. Cahill (Ret.) George D. Calkins, II, Esq. • Richard Chernick, Esq.* Zela “Zee” G. Claiborne, Esq. • Robert B. Davidson, Esq.* Linda DeBene, Esq. • Bruce A. Edwards, Esq David Geronemus, Esq. • Kenneth C. Gibbs, Esq.* Jesse B. (Barry ) Grove III, Esq.* • Katherine Hope Gurun, Esq.* William E. Hartgering, Esq. • John W. Hinchey, Esq.* Gerald A. Kurland, Esq. • HH Humphrey LLoyd QC* Hon. Clifford L. Meacham (Ret.) • Joseph T. McLaughlin, Esq. Roy S. Mitchell, Esq. • James F. Nagle, Esq. Douglas S. Oles, Esq. • Donald R. Person, Esq. Alexander S. Polsky, Esq. • Carl M. Sapers, Esq. Vivien B. Shelanski, Esq. • Thomas J. Stipanowich, Esq.* Michael J. Timpane, Esq. • Eric E. Van Loon, Esq. Hon. Curtis E. von Kann (Ret.) • Catherine A. Yanni, Esq. Michael D. Young, Esq. *GEC Advisory Board Member JAMS Global engineering and Construction Group 1920 Main st . • suite 300 irvine, ca 92614 Presorted First Class U.S. Postage PAID Permit No. 510 Santa Ana, CA