When a party asserts the right to arbitrate a claim or dispute under a construction contract, some initial questions arise: Is there an enforceable arbitration clause? What is the scope of the arbitration agreement? Does it apply to this dispute? Collectively, these threshold matters are known as the “arbitrability” of the dispute. Traditionally, a court makes this determination as it is a question of law. It is possible, however, for the parties to the arbitration agreement to assign responsibility for determining arbitrability to the arbitrator.
In a recent Florida case, the arbitration clause expressly incorporated the American Arbitration Association Construction Industry Rules, which delegate the arbitrability determination to the arbitrator. The appellate court found this persuasive when it reversed a lower court ruling on arbitrability. The matter was remanded with instructions to send the question to the AAA arbitrator.
The second case in this issue involves a consolidated claim submitted on a federal construction contract. The claim comprised numerous sub-claims. The total consolidated claim was priced, as were most of the sub-claims. The unpriced sub-claims were dismissed for failure to state a sum certain. The contractor had the right, however, to resubmit those claims to the government contracting officer.
