Q&A with Daniel A. Kapner about 2015 Amendments to AAA Construction Industry Arbitration Rules

An interview with Shapiro, Lifschitz & Schram (“SLS”) attorney Daniel A. Kapner was published in the Winter 2016 edition of Under Construction, the newsletter of the ABA Forum on Construction Law, regarding the American Arbitration Association’s (“AAA”) July 2015 Amendments to the Construction Industry Arbitration Rules and Mediation Procedures.

During the interview, Kapner discussed the July 2015 amendments that are most likely to affect the practice of arbitrating construction disputes before the AAA.  For example, under the 2015 amendments

  • attorneys have the right to seek “emergency measures of protection” from the AAA before a tribunal is constituted;
  • tribunals may order sanctions if a party fails to comply with obligations;
  • tribunals are expressly permitted to weigh in on the exchange between parties of electronically stored information; and
  • the process for requesting or objecting to a request for joinder or consolidation is expanded and refined.

Kapner discussed an example involving SLS’s representation of a federal subcontractor under the old AAA rules where clarification regarding the process for consolidating related proceedings was needed.  Kapner stated: “Last year . . . our firm submitted three requests for consolidation of related AAA proceedings involving disputes concerning a large-scale federal construction project.  The October 2009 rules did not specify a timetable for parties to respond to requests for consolidation and joinder or indicate whether a party waives its right to object to consolidation or joinder if it fails to respond by a certain date.  The amendments resolve these ambiguities.”

Kapner also discussed whether the amendments enhance the cost-effectiveness and efficiency of proceedings administered under the Rules, the expansion of arbitrators’ powers under the amended rules, and the AAA’s process for amending the Rules.

This article was originally published on Under Construction Vol. 17 No. 3 (Winter 2016).