Dispute Resolution Provisions – Lessons Learned

Dispute resolution provisions usually get insufficient attention at the time of bidding or contract negotiation. This is a topic we addressed several years ago in an article titled - Five Reasons to Read the Dispute Resolution Clause in Your Construction Contract. Recent lessons learned prompt us to address this issue again. These are some additional problem areas to avoid in drafting or negotiating dispute resolution provisions.

Disguised Arbitration Clauses

Some contract provisions that reference arbitration don't actually require the parties to arbitrate. For example, Alberta Construction Association Subcontract (ACA Form A) provides: "In the event that the parties have agreed to submit such disputes to arbitration either party may thereupon request arbitration..." It is clear that this reference to arbitration is permissive and requires a separate agreement to arbitrate between the parties. Provisions of this nature can be even more subtle or sometimes